CGB's "intellectual capital" business covers a wide range.
I believe that many credit card holders of Guangfa Bank are familiar with the "intellectual capital" business. This kind of business is linked with credit card and savings card. After the credit card holder opens this business, Guangfa Bank will issue cash to his savings card in one lump sum according to the cardholder's comprehensive credit situation, which can be repaid in installments. However, the money does not occupy the cardholder's credit card limit, which is sometimes several times that of the credit card. The intellectual property business of Guangfa Bank has been well received since its launch.
However, the unclear and one-sided introduction of CGB's intellectual property business makes the definition of its nature vague in judicial practice, and it is difficult to unify the judicial determination and applicable standards for the nature of intellectual property and whether users will incur criminal responsibility after overdraft. However, according to the summary and analysis of judicial practice in recent years, we can clearly judge that overdraft of "intellectual property rights" does not constitute the crime of credit card fraud.
According to lawyer Dai's judicial summary of intellectual property products of Guangfa Bank, in judicial practice, "intellectual property" products have been popularized and used since 2006. As for the litigation cases caused by the failure to return the business applicant's "universal property" after being collected by the bank, according to the statistics of the judgment document network, there are more than 65,438 civil judgments and 48 related criminal judgments, accounting for 4.8% of the criminal judgments.
Since 20 17, the Tongzhou District People's Court of Beijing has determined that "intellectual property" is a cash installment business attached to credit cards, and its essence is still a civil loan, and the corresponding unpaid amount is not included in the amount of credit card fraud. Until article 11 of 20 18, 12, 1 Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning Amending the Specific Application Law in Handling Criminal Cases of Impairment of Credit Card Management: "If the card issuer illegally issues loans in disguised form by credit card overdraft, and the cardholder fails to repay the loan according to the regulations, Article 196 of the Criminal Law' Malicious Overdraft' shall not apply. Those who constitute other crimes shall be punished for other crimes. " In the judicial practice of credit card cases, at this stage, it has been done to explain to the banking industry that its business and products are not arbitrary and lenient, and clear legislation and efficient justice are needed to safeguard the due interests of the banking industry. Practice has achieved a neutral and fair attitude of safeguarding the rights and interests of users and the banking industry.
Therefore, regarding the attributes of "intellectual property" products, Lawyer Dai made the following three summaries:
According to the first-instance judgment (20 18) made by Huicheng District People's Court of Huizhou City on Zhang's credit card fraud case, Zhang subjectively believes that the bank's payment of intellectual property rights is an approval of his repayment ability, and objectively, Zhang's overdraft of intellectual property rights is an equal civil subject relationship, so Zhang's overdraft of intellectual property rights does not meet the constitutive requirements of credit card fraud.
This case is very representative, please be sure to read it through.
(This case focuses on the retrial judgment of Huicheng District People's Court: Zhang overdraft intellectual property does not meet the constitutive requirements of credit card fraud), required reading! Must read! Must read!
Zhang, male,1born on September 25th, 983, Han nationality, university degree, lives in Huicheng District, Huizhou City, Guangdong Province. Zhang and his cousin run a small restaurant together, mainly engaged in morning tea and night market business. Because the food is excellent and the price is moderate, the word of mouth has always been very popular with the surrounding residents. Although the facade is not big, the channel switching rate is high and the profit is quite rich.
After the college entrance examination, Zhang's nephew decided to study in Canada, and his cousin and sister-in-law also decided to go abroad to accompany them and emigrate. therefore
Therefore, after cashing in 80,000 yuan of credit card, Zhang withdrew 6,543.8+0.2 million yuan of intellectual capital, plus funds raised from other relatives and friends, and paid it to his cousin, and fully invested.
In the past, the purchase of restaurants and kitchens were managed by cousins, so they have been able to control the cost of dishes and ensure the quality of output. After my cousin quit, Zhang handed it over to the chef, and problems began to appear in management. At first, the old customers complained a little, but later, because of the declining quality, many customers were lost and the business plummeted.
Because of management problems, Zhang is restless, while the cost of restaurants is rising and the profit is falling. Therefore, the money that could have been paid back on time began to have problems. In order to maintain the credibility between relatives and friends, Zhang decided to give priority to other relatives in the monthly profit, and credit cards always paid the minimum repayment amount. Finally, Zhang's economic situation continued to deteriorate, and the credit card principal and "intellectual capital" could not be repaid.
The credit card of Guangfa Bank under Zhang's name still has a principal of 83,806.89 yuan and "intellectual capital" of 70,000.05 yuan, interest, liquidated damages and installment fees of 43,993.06 yuan, and there is still 65,438+097, which 800 yuan cannot repay. Due to the large amount of arrears, Guangfa Bank refused to repay after repeated collection and reported the case to the local public security organ.
Zhang was criminally detained by Huicheng Branch of Huizhou Public Security Bureau for credit card fraud. Afterwards, Huicheng District People's Procuratorate decided to release him on bail pending trial. Houhuicheng District People's Court arrested him according to law and detained him in Huizhou Detention Center.
The People's Court of Huicheng District, Huizhou City held that the defendant Zhang had maliciously overdrawn in the process of using the credit card, and refused to repay after being collected by the issuing bank, which constituted the crime of credit card fraud.
The People's Procuratorate of Huicheng District of Huizhou City accused the defendant Zhang Moumou of the criminal facts and charges, and our court supported them;
According to the facts, nature and circumstances of the defendant's crime and the degree of harm to society, according to the provisions of Item 4, Item 2, Article 52, Article 53 and Item 3 of Article 196 of the Criminal Law of People's Republic of China (PRC) and the Interpretation of Several Issues Concerning the Specific Application of Laws in Handling Criminal Cases of Impairment of Credit Card Management, the defendant Zhang was sentenced to five years' imprisonment and fined 50,000 yuan.
& gt Zhang refused to accept the appeal and appealed to Huizhou Intermediate People's Court. Zhang thinks that Caizhi is a loan, and it is doubtful to calculate the total amount of liquidated damages in combination with the overdraft credit card principal, which belongs to unclear facts and requests a revision or retrial.
Huizhou Intermediate People's Court held that the facts of the original judgment were unclear and the evidence was insufficient. In accordance with the provisions of Item (3) of Paragraph 1 of Article 225 of the Criminal Procedure Law of People's Republic of China (PRC), it ruled as follows:
(1) criminal judgment (No.2017) Guangdong 1*02, Huicheng District People's Court, Huizhou City, Guangdong Province, was revoked.
(2) Returned to Huicheng District People's Court of Huizhou City, Guangdong Province for retrial.
According to the retrial request of the Intermediate People's Court for Zhang's credit card fraud case, the People's Court of Huicheng District of Huizhou City retried the reasons for the accusation put forward by the public prosecution agency, fully listened to the defense opinions of the appellant Zhang's defender, and re-examined and sorted out all the evidence involved in this case.
The public prosecution agency believes that the credit card principal and financial intelligence funds should belong to the overdraft of credit cards and should be calculated together. Therefore, the public prosecution agency believes that the defendant Zhang maliciously overdrawn RMB 153806.94, which is huge, and his behavior has violated the provisions of Article 196 of the Criminal Law of People's Republic of China (PRC). If the facts of the crime are clear and the evidence is true and sufficient, the criminal responsibility should be investigated for the crime of credit card fraud. According to Article 172 of the Criminal Procedure Law of People's Republic of China (PRC), if a public prosecution is initiated, please be sentenced according to law.
The defendant Zhang objected to the crime of credit card fraud accused by the public prosecution agency and pleaded not guilty. It argued that it had negotiated with the bank for repayment, and the bank took the initiative to invite it to repay. After that, Zhang voluntarily repaid more than 70,000 yuan according to the agreement. Defendant Zhang believes that Caizhi is a general loan, not a credit card loan.
Defender of defendant Zhang believes that defendant Zhang does not constitute the crime of credit card fraud and should not be convicted and sentenced for the crime of credit card fraud. The reason for this is the following：
1. Regarding the fact that Zhang defaulted on the credit card principal of 83,806.89 yuan and refused to return it, because Zhang had no subjective purpose of illegal possession, his behavior did not meet the constitutive requirements of the crime of credit card fraud, and the defender believed that the defendant Zhang did not constitute the crime of credit card fraud.
The specific reasons are as follows:
Although the defendant Zhang was urged twice by the issuing bank, it was not returned for more than 3 months. But:
The defendant's various behaviors can fully reflect that there is no malicious overdraft in the process of handling and using credit cards, and there is no purpose of illegal possession.
Therefore, the defender believes that the defendant Zhang's behavior only belongs to the behavior of using the card in good faith, which is due to the need of capital turnover and has a certain willingness to repay from beginning to end. The defendant did not evade repayment, and took the initiative to contact the issuing bank to discuss repayment. Its behavior does not meet the "purpose of illegal possession" required by "malicious overdraft" and does not meet the criminal elements of the crime of credit card fraud. Therefore, the defender believes that the defendant Zhang does not constitute the crime of credit card fraud.
Second, because Zhang handled the "wealth management fund" of Guangfa Bank and defaulted on the principal of 70,000.05 yuan, the defender believed that the arrears belonged to ordinary private financial lending in law, not to "overdraft credit card" and did not constitute the crime of credit card fraud.
There is an essential difference between using "wealth management fund" funds and "credit card overdraft". In fact, "Financial Wisdom Gold" is an unsecured and unsecured financial loan launched by Guangfa Bank for old customers with good credit. Because there is no mortgage and no guarantee, there are similarities with credit card overdraft, but there are essential differences between them. Defenders believe that the essence of "financial wisdom fund" business does not belong to the conventional credit card overdraft consumption, and the analysis is as follows:
To sum up, we can see that "financial quotient" and "credit card" are essentially different. "Financial intelligence funds" are ordinary financial loans, which do not meet the characteristics of "overdraft" or the objective elements of "malicious overdraft" in the crime of credit card fraud.
Third, even if the court found that the defendant Zhang constituted a crime, Zhang had a lighter or mitigated punishment and requested the court to consider it according to law.
Zhang's first confession:
On July 23rd, 2007, I applied for a credit card with a card number of 52×××× 25 at Guangfa Bank, Xiapu Road 19, Huicheng District, Huizhou City. At first, the credit line was 18000 yuan, and later it was raised to 80000 yuan. Its overdraft credit card cash is 80,000 yuan (the specific total overdraft consumption needs to be inquired from the bank), and the overdraft consumption has been repaid so far, but it has not been repaid to the bank on time due to problems in the bankruptcy economy of the company. Its last repayment was 3000 yuan, which has not been paid since then. The cash from its overdraft credit card is used for business turnover and living expenses.
Zhang's second confession:
I remember that I overdrawn the principal of Guangfa Bank's credit card by 80,000 yuan, and I also applied for a wealth management fund in Guangfa Bank, which overdrawn the principal by 70,000 yuan.
Shen mine cross-examine:
On October 20 16, 165438 10, Zhang was entrusted by Zhang to negotiate the credit card debt owed by Zhang to Guangfa Bank. At that time, the negotiation situation was that it could be reduced to more than190,000 yuan, but a one-time repayment was needed. He gave the information back to Zhang, but at that time, Zhang said that he did not have the ability to make a one-time repayment.
Witness Lai Mohong's cross-examination:
I communicated with Zhang through an intermediary to discuss the purchase of Zhang's property located in Room 0, 4th floor, Unit Maji Xinmin Village, Henan Sub-district Office, Huicheng District, Huizhou City. At that time, Zhang said that his loan was about to expire and he was anxious to repay the loan with the house payment. However, because the house is a fund-raising house, it is not conducive to handling mortgage loans. It was not until the end of 20 16 that the bank granted funds.
This is the most important part of the case, please read it carefully.
Huizhou Huicheng District People's Court held that the defendant Zhang maliciously overdrawn RMB 83,806.89, which was a large amount, and his behavior constituted the crime of credit card fraud. The public prosecutor accused the defendant Zhang of committing credit card fraud. The facts are clear, the evidence is true and sufficient, and the crime is established. Defendant Zhang did not plead guilty during the trial, but submitted a "Repentance Book" to our court after the trial, indicating that he pleaded guilty and repented, and had already paid back RMB197,800. The remaining amount was reduced by the issuing bank, and he was given a lighter punishment.
On the issue that the public prosecution accused the defendant Zhang of maliciously overdrawing the "Caizhi Fund" by 70,000.05 yuan.
After investigation, Caizhijin is an overdraft transfer installment repayment service launched by Guangfa Bank, which means that the bank deducts a sum of cash not exceeding its comprehensive credit line from its credit card through overdraft transfer and transfers it to the domestic savings account of the same name designated by the cardholder, and the customer repays the principal and handling fee in installments.
Whether the money constitutes a crime is now analyzed as follows:
Defendant Zhang's defender raised the fact that Zhang owed the credit card principal of 83,806.89 yuan and did not return it. Because Zhang subjectively does not have the purpose of illegal possession, his behavior does not meet the constitutive requirements of the crime of credit card fraud, and the defendant Zhang does not constitute the defense opinion of the crime of credit card fraud.
Whether the defendant Zhang overdrawn the principal of the credit card by RMB 83,806.89 constitutes a crime is analyzed as follows:
Defendant Zhang's defender suggested that the defendant Zhang owed Guangfa Bank the principal of "wealth management fund" of 70,000.05 yuan, which did not belong to the act of "overdraft credit card" and did not constitute the crime of credit card fraud; And the defense opinion of the defendant Zhang overdraft credit card principal of 83,806.89 yuan. After the public security organ filed a case and before the procuratorial organ filed a lawsuit, all the outstanding principal was returned, and the remaining amount was reduced by Guangfa Bank. According to the law, it can be given a lighter sentence, which is consistent with the facts found in this case and adopted.
Other defense opinions are inconsistent with the facts ascertained in this case and will not be adopted.
In accordance with the provisions of Item 4, Paragraph 1, Article 196, Articles 52, 53 and 64 of the Criminal Law of People's Republic of China (PRC), the verdict is as follows:
Defendant Zhang committed the crime of credit card fraud, was sentenced to one year's imprisonment and fined RMB 20,000 (the fine will be delivered to our hospital in one lump sum and turned over to the state treasury within one month from the effective date of this judgment).
Related Q&A: What should I do if I can't afford to make a fortune? 1. Agreed repayment: If Guangfai Zhijin can't afford it, you can take the initiative to contact Guangfai Zhijin customer service to apply for agreed repayment, explain the reasons for agreed repayment, and ensure repayment according to the new repayment plan, which will be agreed by the general customer service.
2. Borrowing money for repayment: Guangfa Finance can borrow money from friends and relatives around it, and solve the repayment crisis first to ensure that it will not be overdue. After this period of time, I will return it to my relatives and friends.
3. It should be noted, however, that the agreed repayment application of Guang Fa Cai Zhi Jin needs to be reviewed, and the repayment can be made according to the new repayment method only after it is approved.
Related Q&A: Is Guangfa's "financial wisdom" a bluff? Financial wisdom is not a fool, but you need to know the interest and limit.
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On the other hand, your credit card limit is 50,000 yuan, the installment financing fund is 30,000 yuan, and the credit card limit is still 50,000 yuan, which is not a credit card limit.
2. Installment interest, first of all, the benchmark installment interest is 0.75%, 10000 is 12, and the principal of each installment is 833? The interest rate is 75, and the interest in each installment is actually the same, but your principal is getting less and less, and the annual interest rate is about 16%. However, if you often do financial intelligence, there will be discount interest on activities, and 69% discount and 53% discount are more common. If it is used at a discount, it is still very cheap compared with private lending. I hope I can help you.