In real life, have you ever had a relative, friend, or colleague borrow a bank card (bank account) from you, or buy or rent a bank card online at a high price? When encountering this situation, everyone must be vigilant and not rent (borrow or sell) bank cards (bank accounts) easily. Otherwise, not only may they bear corresponding administrative and civil liabilities, but in serious cases, they may constitute a criminal offence.
Administrative Responsibilities
Article 45, paragraph 2, of the "Measures for the Administration of RMB Bank Settlement Accounts" stipulates that "depositors shall not rent or lend bank settlement accounts, or use bank settlement accounts to defraud Bank credit. "
Article 65 stipulates: "Depositors shall not use bank settlement accounts to engage in the following activities: (4) Leasing or lending bank settlement accounts."
If a non-business depositor commits one of the above-mentioned acts one to five, he shall be given a warning and shall be fined 1,000 yuan; if a commercial depositor commits one of the acts one to five above, he shall be given a warning and shall be fined 1,000 yuan. A fine of not less than 5,000 yuan but not more than 30,000 yuan will be imposed; if the depositor commits any of the above six acts, a warning will be given and a fine of 1,000 yuan will be imposed.
According to the relevant regulations of my country's financial supervision, bank accounts can only be used by the account holder himself. Renting or lending them to others will face warnings and fines. Especially in the face of the high incidence of telecommunications network fraud cases in recent years, China The People's Bank of China clearly stated this in the "Notice on Matters Concerning Further Strengthening Payment and Settlement Management to Prevent New Illegal Crimes in Telecom Networks".
Since April 1, 2019, banks and payment institutions will rent, lend, sell, and purchase bank accounts (including bank cards) or payment accounts recognized by the public security organs at or above the districted city level and Relevant organizers, as well as units and individuals who forge other people’s identities or create fictitious agency relationships to open bank accounts or payment accounts.
All bank account counter operations and payment account operations will be suspended for five years, and new accounts will not be opened for them. After the punishment period expires, banks and payment institutions should increase their review efforts when the punished units and individuals handle new account openings. The People's Bank of China will transfer the above-mentioned unit and personal information to the basic financial credit information database and make it public to the public.
In other words, units and individuals that are recognized by the public security organs at or above the municipal level as leasing (borrowing, selling) bank cards (bank accounts) will not be able to use electronic banking, ATM transactions and other over-the-counter services within 5 years. As well as all payment services, it may also affect my financial credit data.
2. Civil Liability
In judicial practice, the most common behavior of leasing (borrowing) bank cards (accounts) occurs in private lending disputes. The parties involved will provide the bank card (account) for various reasons for various reasons. The borrower's bank card (account) was used to accept the loan, and then the borrower was unable to repay the debt when due, and the lender named the borrower and the lender's bank account as defendants. The lender named both the borrower's and the lender's bank accounts as defendants and required the lender's bank account to also bear repayment liability.
At first glance, it seems that there is something wrong with the lender of the bank account. So in this case, what kind of repayment responsibility is required of the lender of the bank account?
According to the provisions of Article 65 of the "Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China": "Letter of introduction for loan business, contract seal, official seal For blank contracts or bank accounts, the relationship between the lender and the borrower is that of the parties to the litigation." This article only clarifies from the procedural law that bank account lenders and borrowers can be listed as co-litigants, but does not clarify their substantive responsibilities.
The Supreme People's Court's "Reply on Whether Bank Account Lenders Should Bear Civil Liability" further clarified this issue: "Lending bank accounts is an illegal act that violates financial management laws and regulations. In addition to In addition to confiscating the illegal income from the lending account and imposing a fine in accordance with the relevant provisions of the law, the lender should also be held accountable for corresponding civil liability according to different circumstances."
Many judicial precedents use the above-mentioned "Reply" as the legal basis for investigating the civil liability of bank account lenders. However, since the "Reply" does not clearly stipulate what kind of civil liability shall be assumed, the courts often combine it in judicial practice. The judgment is made by considering factors such as the degree of fault of the account lender, whether he or she has benefited from the loaned account, and whether it has caused losses to the creditor.
There are judgments that bear joint and several liability, and there are judgments that bear supplementary liability, and there are also judgments that bear joint and several liability or supplementary liability within a certain proportion, but there are also judgments in which the lender has neither fault nor benefit. The judgment that the lender does not assume any liability will not be repeated here.
However, the above-mentioned "Reply" has been replaced by the "Decision of the Supreme People's Court on Abolition of Some Judicial Interpretations and Related Normative Documents" (released on December 29, 2020; implemented on January 1, 2021). Although it has been abolished, it still has reference value. The author searched the case law and found that after the above-mentioned "Reply" was abolished, some courts still ruled that the account lender should bear joint liability based on the above-mentioned "Reply". Joint liability
For example, in the "(2021) Min 06 Min Zhong No. 3137 Civil Second Instance Case of Li Yanqing, Guo Zhongqing and Other Private Lending Disputes", the second instance court held that: On March 23, 2020, Guo Zhongqing loaned 50,000 Yuan, although Li Yacheng issued an "IOU", it was also transferred to Li Yanqing's personal bank account.
Since Guo Zhongqing issued the IOU on January 17, 2017, Li Yacheng has been collecting and paying the principal and interest of the loan to Guo Zhongqing through his mobile banking. Therefore, Li Yacheng and Li Yanqing are the controllers and users of the funds involved. Li Yanqing appealed, saying that because Li Yacheng did not know how to use a mobile phone to transfer money, as his daughter, he only occasionally helped transfer money.
However, Li Yanqing did not provide evidence to prove that he transferred all the loans to Li Yacheng and did not use the loans himself. His appeal reasons were inconsistent with the facts and the court would not accept them.
Li Yanqing used his personal bank account to conduct lending activities, which violated Article 65 of the "RMB Bank Settlement Account Management Measures" of the People's Bank of China and the "Reply of the Supreme People's Court on whether lending bank accounts bear civil liability" " and the provisions of Article 65 of the "Interpretations of the Supreme People's Court on Several Issues Concerning the Application of the Civil Procedure Law of the People's Republic of China".
It was not inappropriate for the court of first instance to order Li Yanqing to bear joint and several liability for compensation in this case. Li Yanqing's grounds for appeal are untenable and will not be accepted by this court.
The author has reservations about the above judgment and previous cases in which account lenders were held to bear joint liability or supplementary liability. Both the Civil Code and the now-invalid General Principles of the Civil Law clearly stipulate: "Joint and several liability shall be stipulated by law or agreed upon by the parties."
The "Reply" is not a law and does not clearly stipulate that joint and several liability shall be borne. The legal community only quotes the "Reply" to judge that the lender shall bear joint liability when opening an account, which lacks a clear legal basis.
From a contractual perspective, the account lender is not a party to the loan contract, and there is no clear guarantee or intention to join the debt. According to the principle of privity of the contract, the account lender should not be held liable. From the perspective of infringement, even if the account lender's behavior of lending the account violates financial regulatory requirements and is at fault, the lender will also suffer losses.
But whether there is a causal relationship between the lender's losses and the account lender's behavior of lending the account, we understand that only if the causal relationship is proven, the account lender can be held jointly and severally liable based on the tort theory. or additional responsibilities.
3. Criminal Liability
If someone still lends (rents or sells) a bank card (bank account) knowing that it may be used by others for illegal and criminal activities, the account lent shall be charged based on the circumstances of the crime of the other person. People may be guilty of assisting information network crimes, covering up or concealing criminal proceeds, obstructing credit card management, money laundering, fraud, refusing to execute judgments and rulings, and money laundering. Crimes of fraud, refusal to execute judgments, crimes of adjudication, etc. The author has retrieved several relevant cases for reference.
(1) Helping information network crimes
Article 287-2 of the "Criminal Law": "Knowing that others are using information networks to commit crimes, providing them with Internet access, server hosting, network Technical support such as storage and communication transmission, or providing assistance such as advertising, payment and settlement, if the circumstances are serious, shall be sentenced to fixed-term imprisonment of not more than one year; if other assistance is provided, if the circumstances are serious, the sentence shall be fixed-term imprisonment of not more than three years or criminal detention, and concurrently or solely. Penalties".
For example, in (2022) Liao 0114 Xingchu Case No. 137, one day in August 2021, the defendant Shi, who lived in Yuhong District, Shenyang City, knew that the bank card rented by others might be used for Information network criminal activities came to the vicinity of Anshan Railway Station.
In his own name, he rented five bank cards from Bank of Communications, Industrial and Commercial Bank of China, Postal Savings Bank, China Everbright Bank and Bank of China, making a profit of RMB 3,800. Subsequently, the above five bank cards were used by telecom fraud gangs, and the settlement amount totaled RMB 2,334,810.60 during the case.
After trial, the court held that in order to obtain benefits, he knowingly provided payment and settlement assistance for others to use information networks to commit crimes. The circumstances were serious and his behavior constituted the crime of assisting information network criminal activities. He was sentenced to ten years in prison. months, and a fine of RMB 10,000.
(2) Covering up or concealing criminal proceeds
Article 312 of the "Criminal Law": "Knowingly harboring, transferring, acquiring, or selling on behalf of criminal proceeds and the proceeds generated therefrom Or use other methods to cover up or conceal, and if the circumstances are serious, he shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or public surveillance, and shall also or solely be fined; if the circumstances are serious, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years. , and be fined. "
For example, in the (2022) Yu 0113 Criminal Case No. 502, in September 2021, the defendant Zhang Moumou knew that the transferred funds might be criminal in order to obtain illegal benefits. With the proceeds, he provided the Sichuan Rural Credit Bank Card and Zhejiang Online Merchant Bank Card in his name to his superiors for transferring funds obtained from crime, and used his mobile phone to conduct the transfer operations.
Sichuan Rural Credit Cooperative defrauded Huang, Zhang, Xing and others of 61,500 yuan, with a turnover of more than 170,000 yuan; Zhejiang Online Commerce Bank defrauded Wu and others. The defrauded funds were 49,900 yuan, and the turnover amount was 49,900 yuan. The total amount of water intrusion was more than 220,000 yuan, and the illegal profit was 3,000 yuan.
The court held that Zhang Moumou knew that the funds were proceeds of crime but still transferred them. The circumstances were serious and his behavior constituted the crime of covering up and concealing the proceeds of crime. He was sentenced to two years and five months in prison and punished. Thirty thousand yuan in gold.
(3) Crime of Fraud
Article 266 of the "Criminal Law": Whoever defrauds public or private property, if the amount is relatively large, shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or surveillance. A fine may be imposed concurrently or solely; if the amount is huge or there are other serious circumstances, the offender shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years, and shall also be fined.
If the amount is particularly huge or there are other particularly serious circumstances, the offender shall be sentenced to fixed-term imprisonment of not less than ten years or life imprisonment, and shall also be fined or have property confiscated. If this law provides otherwise, the provisions shall prevail.
For example, in the (2018) Shanghai 0104 Xingchu Case No. 805, the defendant Yuan opened accounts and applied for bank cards in more than a dozen banks. The bank account funds under his name spanned a long period of time, with millions The above large amount of funds are traded frequently. During the process of Jiang's capital borrowing, Yuan used the bank account provided to transfer funds, collect and issue the principal and interest of the loan. Once there is a risk of profit, Yuan will participate in the lawsuit.
The evidence in the case shows that Jiang, Li, Song and others discussed the specific details of lending to Cao and then arranged for Yuan to lend and collect funds on the spot. In fact, the 2.1 million yuan transferred from Yuan's bank account to Li's account was a bank transfer of 3 million yuan lent to Cao, and the 2 million yuan Zhang 1 made from mortgage was also transferred to Yuan's bank account. .
After further investigation, Yuan participated in civil lawsuits in many courts in this city and was suspected of criminal offenses.
According to the "Opinions on Several Issues Concerning the Handling of "Routine Loan" Criminal Cases" by the two departments, the High People's Government and the Ministry of Finance, knowing that others are committing "routine loan" crimes and still providing funds, bank cards, accounts, etc. to help others will be charged with related crimes.
According to the Supreme Court's "Interpretations on Several Issues Concerning the Specific Application of Laws in the Trial of Criminal Cases of Money Laundering", without legitimate reasons, assisting others to deposit large amounts of cash into multiple bank accounts or frequently transfer between different bank accounts If the money is transferred, it can be directly determined that the perpetrator did it knowingly that it was the proceeds of crime and its proceeds.
Based on the defendant Yuan’s cognitive ability, past experience and behavioral methods, his subjective understanding of the "loan sharking" crime involved in the case is general, and objectively provided the flow of funds in the bank account, which is " It is an indispensable part of the crime of loan sharking and constitutes the crime of loan sharking and fraud.
In the end, the court found that the defendants Li, Song, Jiang, and Yuan used "routine loans" to defraud others of about 22,000 yuan for the purpose of illegal possession. The amount was particularly huge. His actions have constituted the crime of fraud, and the same crime of rape should be punished. Yuan was sentenced to ten years in prison, deprived of political rights for one year, and fined RMB 10, and was fined RMB 10 and deprived of political rights. One year and a fine of RMB 100,000.
In such cases, the key component of whether the person who lends his household registration bears criminal liability is the identification of "knowingly". In judicial practice, the "presumed knowing" method is often adopted, that is, as long as the person who lends his household registration If the person who lends his or her registered residence has corresponding circumstances, it is presumed that he or she knew it with knowledge
In such cases, the key component of whether the person who lends his or her registered residence shall bear criminal liability lies in the identification of "knowingly".
For example, in the "Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Laws in the Trial of Criminal Cases of Money Laundering", the Supreme Court held that the defendant's cognitive ability should be combined with the defendant's exposure to other people's criminal proceeds and their proceeds. combined.
Subjective and objective factors such as the type and amount of criminal proceeds and their proceeds, the way in which the criminal proceeds and their proceeds are transformed and transferred, as well as the defendant's confession. If one of the following circumstances occurs, the defendant may be deemed to have known that the proceeds were criminal proceeds and the proceeds therefrom, but there is evidence to prove that he did not know:
(1) Knowing that others are engaged in illegal and criminal activities, assisting in converting, Transferring property; (2) Assisting in the conversion or transfer of property through illegal means without justifiable reasons; (3) Acquiring property at a price significantly lower than the market price without justifiable reasons (4) Assisting in the conversion or transfer of property without justifiable reasons Property, charging a "fee" that is significantly higher than the market.
(5) Assisting others to deposit large amounts of cash into multiple bank accounts or making frequent transfers between different bank accounts without legitimate reasons; (6) Assisting close relatives or other closely related people to transfer, Transferring property that is obviously inconsistent with his or her occupation and property status; (7) Other circumstances that can be determined to be known to the perpetrator.
As another example, the "Interpretations of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Specific Application of Laws in Handling Cases of Using Information Networks to Commit Violations and Crimes" stipulates that providing technical support or assistance to others in committing crimes falls under the following circumstances: For one of the above, it can be determined that the perpetrator knew that others were using information networks to commit crimes, except where there is evidence to the contrary: (1) Still carrying out relevant acts after being notified by the regulatory authorities; (2) Receiving a report Failure to perform statutory management duties; (3) Transaction prices or methods are obviously abnormal; (4) Providing programs, tools or other technical support and assistance specifically for the commission of crimes.
(5) Frequently taking measures such as concealing Internet access, encrypting communications, destroying data, or using false identities to evade supervision and avoid investigation and punishment; (6) Providing technical support or assistance for others to evade supervision and avoid investigation and punishment; (7) Other circumstances sufficient to establish that the perpetrator was aware of the crime.
To sum up, in order to safeguard your legitimate rights and interests and avoid leakage of personal information, property losses and legal liability, please keep your bank card (bank account) properly.