Possible legal liabilities for lending bank cards

In real life, have you ever encountered a relative, friend or colleague borrowing a bank card (bank account) from you, or have you purchased or rented a bank card at a high price online? In this case, you must be vigilant and do not rent (borrow or sell) bank cards (bank accounts) easily. Otherwise, you may not only bear corresponding administrative and civil liabilities, but in serious cases may constitute a criminal offence.

1. Administrative Responsibilities

The second paragraph of Article 45 of the "Measures for the Administration of RMB Bank Settlement Accounts" stipulates: "Depositors shall not rent or lend bank settlement accounts, or use Bank settlement accounts are used to obtain bank credit. "

Article 65 stipulates: "Depositors shall not engage in the following activities when using bank settlement accounts: (4) Leasing or lending bank settlement accounts."

If a non-business depositor commits one to five of the above-listed behaviors, he or she will be given a warning and fined 1,000 yuan; if a commercial depositor commits one to five of the above-mentioned behaviors, he or she will be given a warning and fined no less than 5,000 yuan. A fine of not more than RMB 30,000 shall be imposed; if the depositor commits the sixth act listed above, a warning shall be given and a fine of RMB 1,000 shall be imposed.

According to the relevant regulations of my country’s financial supervision, bank accounts can only be used by the account holder himself. Those who rent or lend them to others will face warnings and fines, especially in the face of the high incidence of telecommunications and network fraud in recent years. situation, the People's Bank of China made it clear in the "Notice on Matters Concerning Further Strengthening Payment and Settlement Management to Prevent New Illegal Crimes in Telecom Networks".

Starting from 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 the districted municipal level and above. Units and individuals and relevant organizers who pretend to be other people’s identities or create fictitious agency relationships to open bank accounts or payment accounts.

All non-counter business in its bank account and payment account will be suspended within 5 years, and no new account will be opened for it. 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 publish it to the public.

That is to say, units and individuals that are recognized by the public security organs at or above the districted city level as leasing (borrowing or selling) bank cards (bank accounts) will not be able to use electronic banking, ATM transactions, etc. within 5 years. Non-counter business, as well as all payment businesses, may also affect your own financial credit data.

2. Civil Liability

In judicial practice, the most common behavior of renting (borrowing) bank cards (accounts) occurs in private lending disputes. The parties involved transfer their bank cards (accounts) to the bank for various reasons. The card (account) is provided to the borrower to accept the loan, but the borrower cannot repay the debt when due. The lender names both the borrower and the lender of the bank account as defendants and requires the lender of the bank account to also bear the repayment responsibility.

At first glance, it seems that the lender of the bank account is a bit unjust. So in this case, does the lender of the bank account need to bear repayment responsibility and what specific repayment responsibility does it bear?

According to 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: “Borrowing business introduction letters, contract seals, and sealed blank contracts If there is a bank account or a bank account, the lender and the borrower shall be co-litigants. "This article only clarifies from the procedural law that the bank account lender and borrower can be listed as co-litigants, and it is not clear. its entity’s responsibilities.

The "Reply of the Supreme People's Court on the Issue of Whether the Party Lending a Bank Account Bears Civil Liability" further clarifies: "Lending a bank account is an illegal act that violates financial management regulations. In addition to confiscating the loan in accordance with the law, the People's Court In addition to imposing fines on illegal gains from lending accounts in accordance with relevant regulations, the lender should also be held accountable for corresponding civil liability in different situations.

”

Many judicial cases have used the above-mentioned “Reply” as the legal basis for investigating the civil liability of bank account lenders. However, because the reply does not specify what civil liability they bear, in judicial practice, the courts often The judgment will be made by comprehensively considering the degree of fault of the account lender, whether it has benefited from the act of lending the account, and whether it has caused losses to the creditor.

There are both joint and several judgments to bear liability for repayment, and there are also judgments to bear liability. As for supplementary repayment liability, there are also cases in which a judgment is made to assume joint or supplementary repayment liability within a certain proportion. However, there are also cases in which the account lender is found to have neither fault nor benefit and is not liable in any way. I will not go into details here.

However, the above-mentioned "Approval" has been annulled 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 It has been abolished, but it still has a certain reference effect. The author searched for legal cases and found that after it was abolished, there were still courts that ruled that the account lender should bear joint liability based on the above-mentioned approval.

For example, in "(2021) Min 06." In the Civil Second Instance Case of Li Yanqing, Guo Zhongqing and Other Private Lending Disputes, Minzhong No. 3137, the second instance court held that the amount of 50,000 yuan lent by Guo Zhongqing on March 23, 2020, although Li Yacheng issued the "IOU", was also transferred to Li Yanqing's personal bank account.

Since Guo Zhongqing issued the loan on January 17, 2017, Li Yanqing has been collecting the money 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 of the money involved. User. Li Yanqing appealed and claimed that because Li Yacheng did not know how to use a mobile phone to transfer money, as his daughter, he only helped transfer money occasionally.

However, Li Yanqing did not provide evidence to prove that he transferred all the loans involved in the case to Li Yacheng. The loan was not used, and the reason for his appeal was inconsistent with the facts. This court will not accept it.

Li Yanqing used his personal bank account for lending activities, which violated Article 1 of the "RMB Bank Settlement Account Management Office" of the People's Bank of China. Article 65, "Reply of the Supreme People's Court on the Issue of Whether the Party Who Lending a Bank Account Bears Civil Liability" and "Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China" Article 65

The court of first instance ruled that Li Yanqing should be jointly and severally liable for the repayment of this case, which was not inappropriate. None of Li Yanqing’s grounds for appeal were valid, and this court did not accept it.

The author has reservations about the above judgments and previous cases in which the account lender was jointly and severally liable for repayment or supplementary repayment liability. Both the Civil Code and the expired General Principles of the Civil Law clearly stipulate: "Joint and several liability." , as stipulated by law or agreed upon by the parties. "

The "Reply" does not belong to the law, and it does not clarify that joint and several liability should be borne. The case law only cited the "Reply" to judge that the account lender should bear joint liability for repayment, which lacks a clear legal basis.

From a contractual perspective, the account lender is not a party to the loan contract, and has no clear intention to guarantee or join the debt. According to the principle of privity of 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 there is fault, the lender will also suffer losses.

But the lender's loss is the same as the account lender's behavior of lending the account. Whether there is a causal relationship, we understand that only if the existence of a causal relationship is proven, the account lender can be required to bear joint liability or supplementary liability based on the tort theory.

3. Criminal liability

If you still lend (rent, sell) a bank card (bank account) knowing that others may use it for illegal and criminal activities, depending on the crime of others, the account lender may be guilty of assisting information cybercrime, covering up or concealing the crime. Income, obstruction of credit card management, money laundering, fraud, refusal to execute judgments, etc. The author has searched 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, and providing Internet access for their crimes , server hosting, network storage, communication transmission and other technical support, or provide advertising promotion, payment and settlement and other assistance, if the circumstances are serious, he shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and shall also or solely be fined. ”

For example, in (2022) Liao 0114 Xingchu No. 137, one day in August 2021, the defendant Shi, who lived in Yuhong District, Shenyang City, knowingly knew that others renting bank cards may be used for information network crimes, Came near Anshan Railway Station.

Lease five bank cards in his name, including Bank of Communications Card, Industrial and Commercial Bank of China Card, Postal Savings Bank Card, China Everbright Bank Card, and China Bank Card, to others, making a profit of RMB 3,800. Later, the above-mentioned five bank cards were used by telecom fraud gangs, and the payment settlement amount during the incident totaled RMB 2,334,810.60.

The court found 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. month, and be fined RMB 10,000.

(2) Covering up or concealing criminal proceeds

Article 312 of the "Criminal Law": "Knowing that they are criminal proceeds and the proceeds generated therefrom, harboring, transferring, Whoever purchases, sells on behalf of, or conceals or conceals by other means shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or surveillance, and may also 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 shall also be fined. "

For example, in (2022) Yu 0113 Xingchu No. 502, in September 2021, in order to obtain illegal benefits, the defendant Zhang Moumou transferred funds under his own name knowing that the transferred funds might be proceeds of crime. The Sichuan Rural Credit Cooperative bank card and the Zhejiang Online Commerce Bank bank card were provided to the family for transferring funds obtained from crime, and they used their mobile phones to conduct transfer operations.

Sichuan Rural Credit Cooperative, 61,500 yuan of defrauded funds flowed into Huang, Zhang, Xing and others, and the transaction amount was more than 170,000 yuan; Zhejiang Online Commerce Bank, flowed into Wu A certain group of people were defrauded of 49,900 yuan of funds, and the input turnover amount was 49,900 yuan. The above input turnover totaled more than 220,000 yuan, and the illegal profit was 3,000 yuan.

The court found 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 fined 30,000 yuan. Yuan.

(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 (2018) Shanghai Criminal Court No. 0104 No. 805, the defendant Yuan opened accounts in more than a dozen banks and applied for bank cards. The time span of fund transactions in the bank accounts under his name spanned a long time and hundreds of years. Large amounts of funds exceeding RMB 10,000 are frequently traded. During the process of Jiang's investment and lending, Yuan cooperated in providing a bank account for fund circulation, collecting and disbursing the principal and interest of the loan. Once a profit risk occurs, Yuan will be involved in the court.

The evidence in the case shows that Jiang arranged for Yuan to lend and collect funds on the spot after discussing with Li, Song and others the specific details of lending to Cao. In fact, the 2.1 million yuan transferred from Yuan's bank account to Li's account was used to lend 3 million yuan to Cao's bank account, and the 2 million yuan Zhang 1 made from mortgages was also transferred to Yuan's bank. account.

Separate investigation found that Yuan was involved in civil lawsuits in many courts in this city, including suspected criminal offenses.

According to the "Opinions on Several Issues Concerning the Handling of "Routine Loan" Criminal Cases" issued by the two ministries of the People's Republic of China and the High People's Government, those who knowingly provide funds, bank cards, account numbers, etc. to others for committing the crime of "Routine Loan" shall be punished as criminals of related crimes. .

According to the Supreme Court's "Interpretations on Several Issues Concerning the Specific Application of Laws in the Trial of Criminal Cases such as Money Laundering", without legitimate reasons, assist others to deposit huge amounts of cash in multiple bank accounts or in different bank accounts. If there are frequent transfers between parties, it can be directly determined that the perpetrator knew that the proceeds were criminal proceeds and his proceeds.

Based on the defendant Yuan’s cognitive ability, past experience and behavioral methods, he subjectively has a general understanding of the crime involving "routine loans" and objectively provides a bank account for fund circulation. This is It is an indispensable link in this "routine loan" fraud crime and constitutes the main perpetrator of this "routine loan" fraud.

In the end, the court found that the defendants Li, Song, Jiang, and Yuan used "routine loans" to defraud others of approximately 2.2 million yuan for the purpose of illegal possession. The amount was extremely huge, and their actions were all It constituted a crime of fraud and was a crime related to rape, so he should be punished. Yuan was sentenced to ten years in prison, deprived of political rights for one year, and fined RMB 100,000.

In such cases, the key component of whether the account lender bears criminal liability lies in the determination of "knowingly knowing". In judicial practice, the "presumed knowing" method is often adopted for determination, that is, as long as the account is lent If a person has the corresponding circumstances, it is presumed that he has knowledge.

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 such as Money Laundering", regarding the determination of knowingness in the crime of money laundering and the crime of covering up or concealing criminal proceeds, the Supreme Court believed that the defendant should be A person's cognitive abilities, exposure to other people's criminal proceeds and their proceeds.

The identification is based on subjective and objective factors such as the type and amount of criminal proceeds and proceeds, the conversion and transfer methods of criminal proceeds and proceeds, and the defendant's confession. If one of the following circumstances occurs, the defendant may be deemed to have known that the proceeds of crime and his proceeds were known to him, unless there is evidence to prove that he did not know:

(1) Knowing that others are engaged in criminal activities, and assisting in the conversion or transfer of 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, Charging "handling fees" that are significantly higher than the market.

(5) Assisting others to deposit huge amounts of cash in multiple bank accounts or frequently transferring it between different bank accounts without legitimate reasons; (6) Assisting close relatives or other closely related people Converting or transferring property that is obviously inconsistent with his occupation or property status; (7) Other circumstances that can be determined to be known to the perpetrator.

Another example is in the "Interpretations of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Laws in Criminal Cases such as Illegal Use of Information Networks and Helping Information Network Criminal Activities", providing technical support for others to commit crimes or If there is any of the following circumstances, the perpetrator may be deemed to have known 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) Failure to perform statutory management duties after receiving a report; (3) Transaction prices or methods are obviously abnormal; (4) Providing procedures, tools or other technical support and assistance specifically for illegal crimes.

(5) Frequently using covert Internet access, encrypting communications, destroying data and other measures or using false identities to evade supervision or evade investigation; (6) Providing technical support and assistance for others to evade supervision or evade investigation ; (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, avoid leakage of personal information, property losses and legal liability, please take good care of your bank card (bank account).