In violation of state regulations, using sales terminal equipment (POS machines) and other methods, direct payment of cash to credit card holders by means of fictitious transactions, imaginary prices, cash returns, etc. If the circumstances are serious, they shall be convicted and punished by the crime of illegal business.
Recurrence of the case
In 2012, after graduating from Ryu University, Ryu’s father opened a mobile phone store for his investment because of professional misappropriation. After renting the shop for renovation, Ryu began to purchase and recruit sales staff. They applied for a point-of-sale (POS) machine at the local banks. One day, Liu's university classmate Shen came to the shop and asked Liu for help. The original Shen wanted to take some cash through the store's (POS machine) once a year's urgency, Liu to help Shen apply for cash, Shenmou to pay Liu a pen fee. This time cashing Liu Ming eyes bright, why not use their convenience to open mobile phone store to earn more outside the block? With this idea in mind, Ryu made small advertisements for credit card on online forums, space, etc., and more and more people came to find Liu's contacts to cash out his business. Liu also made a large fortune. . In a short period of several years, Liu accumulated a total amount of 6 million yuan, which made him profitable. Is Liu's use of credit card cash illegal? Is it legally liable?
Judge dismissed the case
According to Article 7 of the Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Specific Application of Law in Handling Criminal Cases Impairing the Management of Credit Cards, in violation of state regulations, the use of point-of-sale equipment (POS machines), etc Open prices, cash returns, etc. directly pay cash to credit card holders. If the circumstances are serious, they shall be convicted and punished by the crime of illegal business in accordance with Article 225 of the Criminal Law. Therefore, in this case, Ryu, in the name of selling mobile phones, dealt with credit card holders for swiping cards and picking up cash pad services without any physical transactions, and had already been suspected of illegal operations. Since Liu's accumulated credit card amount has reached 6 million yuan, according to the law, if the amount is more than 5 million yuan, or the financial institution’s capital is more than 1 million yuan is overdue, or the economic losses of financial institutions are more than 500,000 yuan. , it should be considered as "the circumstances are particularly serious" as stipulated in Article 225 of the Criminal Law. Therefore, Liu's behavior has reached a particularly serious level of the crime, will be sentenced to more than five years imprisonment, and the illegal income of one indemnity or more than five times the fine or confiscation of property penalties.
Legal basis
"PRC Criminal Law"
Article 225 In violation of State regulations, if one of the following illegal business practices disrupts the market order and the circumstances are serious, the person shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention, and shall be concurrently or singlely liable to a penalty of more than one time and less than five times the illegal gains. Where the circumstances are particularly serious, they shall be sentenced to fixed-term imprisonment of not less than five years and shall be fined not less than one time but not more than five times the illegal gains or confiscation of property.
Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Certain Issues Concerning the Specific Application of Law in Criminal Cases Impairing Credit Card Management
Article 7 In violation of state regulations, using point-of-sale terminal equipment (POS machines) and other methods, direct payment of cash to credit card holders by means of imaginary transactions, imaginary prices, cash returns, etc. If the circumstances are serious, it shall be based on the 200th of the Criminal Law. The provisions of Article 25 shall be convicted and punished by the crime of illegal business operation.
If the implementation of the preceding paragraph amounts to more than 1 million yuan, or if the financial institution’s funds exceeds 200,000 yuan overdue, or the economic losses of financial institutions exceed 100,000 yuan, it shall be deemed as Article 225 of the Criminal Law. If the amount is more than 5 million yuan, or if the amount of the financial institution’s funds of 1 million yuan is overdue, or the economic losses of financial institutions exceed 500,000 yuan, it shall be deemed as the twenty-fifth of the Criminal Code. The "specified circumstances" are particularly serious.