Being cheated leads to overdue credit cards.

Announcement on the release of "Fa Shi [20 18]No. 19" on 2018.

The Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Revision of the Specific Application Law in Handling Criminal Cases of Impairment of Credit Card Management (hereinafter referred to as "Interpretation of Law [2065438+08] 1 9") published on February/October, 2065 stipulates that:

Cash installment business, such as "universal fund, intellectual fund and dream-realizing fund", is beyond the credit limit of credit cards, and the cash loan amount approved by banks can often reach several times the credit limit of credit cards.

This loan is not credited to the corresponding credit card of the cardholder, and the cardholder can spend or withdraw cash as needed, but directly transfer it to other debit cards of the cardholder. At the same time, the business requires cardholders to accept repayment by installments, repay the principal, corresponding interest and handling fee on schedule every month, and there is no interest-free period.

This cash installment business is obviously different from the general credit card consumer credit in terms of payment method, interest calculation method and repayment method.

In a public elementary school math teacher Chen Mou's credit card fraud case (20 19), although Chen Mou owed more than 80,000 yuan in universal funds, he was acquitted because the universal funds did not belong to the credit card principal and the credit card principal owed did not exceed 50,000 yuan.

(This case is typical, and its highlights and key theories are stated in the second half of the article. Please refer to. )

Education is a hot industry at present, with small investment, quick return and high profit.

Chen Mou, female, 1972, from Linyi County, Yuncheng City, Shanxi Province, Han nationality, university degree, once worked as a math teacher in a local primary school. Husband Li runs an after-school training institution in the local area, mainly training junior high school mathematics, physics, chemistry and other courses. Because of the high teaching level and good reputation, the business of the training class is very good.

Her husband Li Zaiyi opened a training institution near a non-key junior high school. In order to make the training institution more famous, they decided to open another training institution near the key junior high school to attract some excellent students to come in for tutoring. Li believes that the more key junior high school students come to cram schools, the higher the enrollment rate of key senior high schools, which will attract more students and parents to sign up for training.

Since then, the two have made a simple budget, which probably needs 400,000 yuan of start-up funds. After deducting the existing store booking fee, the funding gap is about 300,000 yuan. Chen Mou decided to cash his credit card and apply for the universal fund of Shanghai Pudong Development Bank to meet the preparation and opening of the new store.

Because Chen Mou is a teacher with staff, the credit line of credit card is relatively large. In addition, due to its good credit card record, Shanghai Pudong Development Bank awarded Chen Mou a universal fund of 250,000 yuan. After cashing out the credit card in Chen Mou's name at one time, he applied for the universal fund for 250,000 yuan in two times, and the actual book debt was 26 1 1,000 yuan after the installment fee was included.

Because of the good geographical location and publicity work, there is an endless stream of students who sign up after the opening of the tutorial institutions. But then, because other related organizations around were jealous of her husband Li's business, they wrote an anonymous letter to the local education management department, reporting that although they were teachers, they started a tutoring institution, which was suspected of violating the rules.

The teaching level of the training course is high, and the students have no worries.

After verification by the education management department, Chen Mou was dismissed according to the contract. In addition, because some interest groups were injured, the students in the new cram school were incited to refund their fees and quit. Chen Mou and his wife's cram school business immediately got into trouble.

Because the capital flow is affected, there are problems in the repayment of the principal of the cash credit card and universal fund applied for in Chen Mou. As of February 20 17, the principal of Chen Mou credit card was 88,748.75 yuan, including 82,550 yuan for general fund and 6 198.75 yuan for fixed consumption; Overdue interest, late fees, handling fees, etc. * * * 67686.95 yuan (the late payment fee for interest treatment is worse than that of the tiger). The above project * * * 156435.7 yuan.

It took about 168 days from the overdue in Chen Mou to the decision of Shanghai Pudong Development Bank to report the case. During this period, Shanghai Pudong Development Bank made several phone calls to Ann and sent several registered letters.

Taiyuan Branch of Shanghai Pudong Development Bank issued a copy of Chen Mou's ID card, credit card application contract, signed credit card regulations, bills and collection records to the public security organs. As the evidence was conclusive, the public security organ immediately filed a case.

Subsequently, Chen Mou was arrested by the police of Yuncheng North Station of Linfen Public Security Bureau of Taiyuan Railway Public Security Bureau, temporarily detained in Yancheng District Detention Center of Yuncheng City, and then handed over to the dock police station of Xiaodian Branch of Taiyuan Public Security Bureau. Chen Mou was criminally detained by Xiaodian Branch of Taiyuan Public Security Bureau on suspicion of credit card fraud.

After being detained, her husband Li borrowed 6.5438+0.5 million yuan from relatives to repay all the principal, interest and liquidated damages. Due to policy problems, Taiyuan Branch of Shanghai Pudong Development Bank did not issue a letter of understanding to Chen Mou, but only a settlement certificate.

The People's Procuratorate of xiaodian district, Taiyuan City accused the defendant Chen Mou of committing credit card fraud, and the case was heard in public in the local court. Taiyuan Branch of Shanghai Pudong Development Bank entrusted Jia Mouyu, an employee of the company, to attend the trial.

Jia Mouyu asked:

2065438+April 2005, the defendant Chen Mou applied to the Credit Card Department of our bank for a credit card with a fixed credit line of 37,000 yuan. Activate when you get the card.

Jia asked MouYu again:

Defendant Chen Mou applied to our bank for universal fund174,000 yuan in the process of using the card, and then applied for universal fund of 87,000 yuan. Later, due to Chen Mou's failure to repay the loan within the prescribed time limit, it was overdue by 168 days, and the principal of the credit card involved was 88,748.75 yuan, including 82,550 yuan from the universal fund, and 6 198.75 yuan was spent within the fixed limit. Overdue interest, late fees, handling fees, etc. * * * 67686.95 yuan. Although Chen Mou paid off his debts in the later period, he was suspected of credit card fraud and requested the court to make a judgment according to law.

Chen Mou argued:

I used my personal ID card, income certificate and other materials to apply for a credit card in a business hall of Shanghai Pudong Development Bank in Taiyuan (I can't remember the specific business hall). The card number seems to be 1347. When you get the card, it will be activated and used. Due to operational problems, it began to be overdue and it was difficult to repay.

Confessions of Chen Mou:

The total debt of this card is 156435.7 yuan, and the principal is about 88748.75 yuan, which is used for my personal consumption and investment. During this period, Shanghai Pudong Development Bank will give me 138XXXXXXXX every month.

My mobile phone number called and sent a text message to urge me to repay. I basically answer the phone, but I don't have the money, so it's difficult to repay it at one time.

The People's Court of xiaodian district, Taiyuan City held that the defendant Chen Mou, for the purpose of illegal possession, overdrawn beyond the prescribed time limit and refused to return it after being urged by the issuing bank, which constituted a crime of credit card fraud. The prosecutor charged him with guilt.

Defendant Chen Mou voluntarily pleaded guilty in court and paid all the overdraft interest. The crime was minor, and he was exempted from punishment.

After discussion and decision by the Judicial Committee, the defendant Chen Mou was sentenced to credit card fraud and exempted from criminal punishment in accordance with the provisions of Article 196, Paragraph 1, Item 4, Article 37, Paragraph 2 and Article 61 of the Criminal Law of People's Republic of China (PRC).

Chen Mou refused to accept the verdict and appealed, saying:

Taiyuan Intermediate People's Court sent a letter to Shanghai Pudong Development Bank, asking it to issue the "Certificate on the Management Measures for Credit Function of Credit Card (Personal Card) Repayment by installments". Through this certificate, the court found out that the application and use rules of the "universal fund" cash installment business belong to a personal credit loan of Shanghai Pudong Development Bank.

The certificate pointed out that the "universal fund" was launched by Shanghai Pudong Development Bank to provide credit for credit card holders to repay by installments, and the approved credit funds were transferred to other accounts under the same name of the cardholder through the bank counter or withdrawn by the cardholder. If the credit line does not occupy the fixed credit line of the credit card, the cardholder will repay the loan at the loan interest rate of the same period and grade through the credit card according to the agreed number of periods.

Therefore, the "universal fund" is not an overdraft with a fixed credit limit in a credit card, but a disguised loan.

Taiyuan Intermediate People's Court held that Article 11 of the Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Specific Application of Laws in Handling Criminal Cases of Impairment of Credit Card Management (hereinafter referred to as the Interpretation), which was implemented in February of 18+ 1, stipulated: "The crime of malicious overdraft in Article 196 of the Criminal Law is not applicable to the card issuer who illegally issues loans in the form of credit card overdraft. Those who constitute other crimes shall be punished for other crimes. "

In this case, the principal of the credit card owed by the appellant Chen Mou involved in the case was 88,748.75 yuan, of which the universal amount was 82,550 yuan. The universal amount was introduced by Shanghai Pudong Development Bank to provide the cardholder with installment repayment credit, and the approved credit line was transferred to other accounts or withdrawn by the cardholder through the bank counter. The credit line does not occupy the fixed credit line of the credit card, and the cardholder repays the loan at the loan interest rate of the same period and grade through the credit card according to the agreed number of installments. Therefore, the 82,550 yuan does not belong to the overdraft of the fixed credit line in the credit card, but belongs to a disguised loan.

The issuing bank also proves that the overdraft amount of Chen Mou credit card is 6 198.75 yuan. Then, according to the provisions of Article 8 of the Interpretation, if the amount of malicious overdraft is more than 50,000 yuan but less than 500,000 yuan, it shall be deemed that the amount stipulated in Article 196 of the Criminal Law is relatively large. Previously, the malicious overdraft 1 10,000 yuan was changed to 50,000 yuan or more, and criminal responsibility was investigated only when it reached 50,000 yuan or more.

With regard to the part of Chen Mou's account arrears that includes "interest, overdue fine, handling fee and overdue repayment penalty totaling 67,686.95 yuan", the explanation clearly stipulates that "the amount of malicious overdraft refers to the actual overdraft principal amount that has not been returned when the public security organ files a criminal case, excluding the fees charged by banks such as interest, compound interest, overdue fine and handling fee".

Therefore, this part of interest and other amounts do not belong to the amount of malicious overdraft. Appellant Chen Mou's malicious overdraft amount is 6 198.75 yuan, which does not meet the statutory conditions of "large amount" stipulated in the criminal law, and he should not be investigated for criminal responsibility by applying the criminal law.

Chen Mou's behavior does not constitute a crime according to law. Therefore, Chen Mou's behavior does not constitute an appeal for the crime of credit card fraud, which is supported. The original judgment found the facts clear, but the applicable law was wrong. In accordance with the provisions of Item 2, Paragraph 1, Article 236 of the Criminal Procedure Law of People's Republic of China (PRC), the judgment is as follows:

1. Revoke the criminal judgment of Taiyuan xiaodian district People's Court (20 18) Jin 0 105, which means that the defendant is found guilty of credit card fraud and exempted from criminal punishment.

Second, the appellant Chen Mou is not guilty.