The court's latest judgment is that credit card cash-out lending is not private lending
Brief facts of the case
Wang and Zheng are old friends who have been friends for many years. Since August 2018, Zheng borrowed money from Wang on the grounds of tight funds for the contracted project, and in June 2019, after Wang used his credit card to cash out, he lent Zheng 100,000 yuan in cash, WeChat transfer and Alipay transfer, and after the two parties reconciled on June 1, 2019, Zheng still owed Wang the loan principal of 90,000 yuan. Zheng repeatedly promised to repay the loan for various reasons, but he never repaid, so Wang sued the court.
The trial took place
In the process of reviewing the validity of the loan contract, the plaintiff admitted that the source of funds lent to the defendant Zheng was obtained by withdrawing the credit card funds held by the plaintiff, including two ways: the plaintiff transferred and lent through WeChat and Alipay after cashing out, and directly handed over the credit card under his name to the defendant for cash-out and lending, and the loan amount included the cash principal and handling fee. On December 6, 2018, the plaintiff and the defendant reconciled the amount borrowed by the two parties, and both parties recognized that as of December 6, 2018, the defendant Zheng had borrowed 95,000 yuan from the plaintiff Wang, and signed the reconciliation statement for confirmation.
What the judge said
First of all, there is no private lending relationship between the plaintiff and the defendant. As a voucher given by the bank to a specific cardholder for overdraft consumption, the credit card can only be used for shopping or consumption to special merchants, and does not have the function of using it as cash for private lending transactions, so private lending cannot be borrowed in the form of credit card cash, and the credit limit in the credit card is owned by the bank, not all the money owned by the cardholder, and the cardholder does not have ownership of the line before the consumption overdraft, and only when the card is consumed, the cardholder and the card-issuing bank have a legal relationship of lending.
Second, cashing out a credit card is illegal. According to mainland law, if a person violates national regulations by using point-of-sale terminals (POS) and other methods to make direct cash payments to credit card holders by means of fictitious transactions, false prices, cash returns, etc., and the circumstances are serious, it shall be convicted and punished as the crime of illegal business operation. It can be seen that it is not possible to cash out by swiping a credit card, nor can it be used to lend loans by swiping a card. The legal relationship between the plaintiff and the defendant is ostensibly that the plaintiff lends the money to the defendant through WeChat and Alipay transfers, but in fact the plaintiff cashes out the money through a credit card and then lends it to the defendant. According to the provisions of the Contract Law, after a contract is invalid, the property acquired as a result of the contract shall be returned. Therefore, according to the law, the invalid contract is not legally binding from the beginning, and the property obtained due to the invalid contract should be returned, that is, Zheng should return Wang's property of 95,000 yuan.
To sum up, as a voucher given by the bank to a specific cardholder for overdraft consumption, the credit card can only be used for shopping or consumption from special merchants, and does not have the function of being used as cash for private lending transactions, so the credit card cash loan is not a private loan, but the borrower shall return the property obtained as a result of the lending to the lender.
Relevant Laws
Article 155 of the Civil Code of the People's Republic of China:
Civil juristic acts that are invalid or revoked are not legally binding from the beginning.
Article 157 of the Civil Code of the People's Republic of China:
After a civil juristic act is invalid, revoked, or determined not to take effect, the property acquired by the actor as a result of the act shall be returned; The party at fault shall compensate the other party for the losses suffered thereby, and if both parties are at fault, they shall each bear the corresponding responsibility. Where the law provides otherwise, follow those provisions.
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