Mr. Yin, from Jiayu County, Hubei Province, did not expect that he would become a "fraudster" because he failed to repay his credit card loan in time, and was sentenced to three months of detention and six months of probation. Mr. Yin insisted that he was innocent and appealed for more than four years, but the court finally acquitted him.
Narrator: Failed to repay the credit card loan in time, and the card user was criminally detained after the bank reported the case
Mr. Yin is a 56-year-old native of Jiayu County, Xianning City, Hubei Province. On the afternoon of May 11, Mr. Yin sighed when he mentioned that he had committed the crime of "credit card fraud".
"After graduating from high school, I went home to work, and successively opened a wreath products factory, a bamboo products factory, and engaged in the manufacture and sales of related products." According to Mr. Yin, in March 2012, he applied for a credit card at the Jiayu branch of the Bank of China with a limit of 50,000 yuan.
Mr. Yin's fireworks business license was handled that year
After the credit card was issued, he used the card to buy a truck worth nearly 50,000 yuan and handled 24 installment businesses. For the first few years of using his credit card, he made regular repayments. In the summer of 2017, due to heavy rain in Jiayu County, his wreath products factory and bamboo products factory suffered serious losses due to the rain, and finally closed down, failing to repay the bank on time.
Mr. Yin's factory at that time
Mr. Yin's business license for that year
"In September 2017, I was assessed as a poor household by the town, and since then, I have taken the initiative to contact the Bank of China to negotiate the repayment and apply to the bank for interest reduction due to the disaster, but there has been no result."
What he didn't expect, Mr. Yin said, was that in January 2019, the Xianning branch of the Bank of China reported the case to the Jiayu County Public Security, and on October 16, 2019, he was criminally detained by the local police on suspicion of "credit card fraud." By that time, he owed a total of more than 80,000 yuan to the Bank of China.
Sentenced: The prosecution charged him with malicious overdraft, and was sentenced to 3 months of detention with 6 months of probation in the first instance
According to Mr. Yin, on October 31, 2019, he was arrested on suspicion of committing credit card fraud.
"On April 1, 2020, the Jiayu County Procuratorate filed an indictment with the Jiayu County Court, accusing me of maliciously overdrafting." Mr. Yin said he was released on bail on November 18, 2019, after 33 days in detention.
The Gale News reporter of Huashang Daily saw from the judicial documents provided by Mr. Yin that the Jiayu County Procuratorate alleged: In March 2012, the defendant Yin Moumou applied for a credit card at the Jiayu branch of the Bank of China, and he still overdrew a large number of credit cards knowing that he had no ability to repay, and as of December 31, 2018, he had overdrawn the principal and interest with the card totaling 93,454.29 yuan (including the principal of 64,983.05, the interest of 12,130.78 yuan, and the cost of 16,340.46 yuan). After repeated collections by bank staff, it still could not be returned. After the incident, the defendant Yin Moumou had returned the arrears on November 12, 2019.
The prosecution believes that the defendant Yin Moumou maliciously overdrafted and the amount was relatively large, and his behavior violated the relevant provisions of the Criminal Law, and he should be investigated for criminal responsibility for the crime of credit card fraud.
Mr. Yin said that in court, he did not recognize the charges assigned by the procuratorate, "I was unable to repay the loan due to the damage to the factory, not that I was unwilling to repay." ”
The facts ascertained by the Jiayu County Court during the trial were basically the same as the content of the prosecution's indictment, and the court found that Mr. Yin had returned the principal and interest of the arrears of 81,323.51 yuan after the incident.
The Jiayu County Court held that the defendant Yin Moumou, for the purpose of illegal possession, overdrew the credit card amount of 64,983.05 yuan knowing that he had no ability to repay, and did not return it for more than three months after being effectively collected by the card-issuing bank, and the fact that the public prosecution alleged that he committed credit card fraud was established, and his behavior constituted the crime of credit card fraud. Because Yin XX has a good attitude in admitting guilt and has returned all the principal of the loan, he may be given a lighter punishment as appropriate.
On June 2, 2020, the Jiayu County Court ruled in the first instance that the defendant Yin Moumou committed the crime of credit card fraud and was sentenced to three months of criminal detention, suspended for six months, and fined 20,000 yuan.
Appeal: The client insisted on the innocence appeal for 4 years, and the court finally changed the verdict to not guilty
Mr. Yin could not accept the first-instance judgment and appealed to the Xianning Intermediate People's Court in accordance with the law.
The Xianning Intermediate People's Court held that the facts found in the original judgment were clear, the conviction was accurate, the trial procedures were lawful, and the sentence was appropriate, and ruled on December 30, 2020 that the appeal was rejected and the original judgment was upheld.
Unconvinced, Mr. Yin filed a complaint with the Xianning Intermediate People's Court, which was also rejected.
"I am not satisfied with the appeal result of the Xianning Intermediate People's Court, and I appealed to the Hubei Provincial High Court." Mr. Yin said that the Hubei Provincial High Court found that the facts of the original effective judgment finding that he had committed credit card fraud were unclear and the evidence was insufficient, and ordered the Xianning Intermediate People's Court to retry the case on November 17, 2022.
On February 28, 2023, the Xianning Intermediate People's Court ruled in the retrial: revoke the previous ruling (judgment) made by the court and the Jiayu County Court, and remand the case to the Jiayu County Court for retrial.
The Jiayu County People's Court held in the retrial that Mr. Yin objectively had the act of overdrawing his credit card, but found that the evidence that he subjectively had the "purpose of illegal possession" was insufficient, which did not meet the circumstances of constituting "malicious overdraft" in the crime of credit card fraud as stipulated in the Criminal Law. There was insufficient evidence to accuse him of credit card fraud, and the charges could not be sustained.
On December 4, 2023, the Jiayu County Court retried and ruled that Mr. Yin was not guilty. Regarding this result, the Jiayu County Procuratorate held that the Jiayu County Court's retrial judgment found that the facts were wrong and the trial procedure was seriously illegal, so it lodged a protest. In this case, Mr. Yin also appealed.
The Xianning Intermediate People's Court held in the second instance that the Jiayu County Procuratorate's protest opinion could not be sustained, and that the facts found in the retrial judgment were clear, the evidence was credible and sufficient, and the trial procedures were lawful. Recently, the Xianning Intermediate People's Court ruled in the second instance: rejecting the protest and appeal, and upholding the original judgment.
Mr. Yin said that after four years of appeal and appeal, he finally got his innocence back, and the next step is to apply for state compensation and ask the case-handling authorities to investigate the responsibility of relevant personnel in accordance with the law.
The lawyer reminds that you should be cautious in handling such cases to avoid treating economic disputes as a criminal offense
What are the constitutive elements of the crime of credit card fraud? How is the sentence sentent? How to determine "malicious overdraft" or difficulty and inability to repay? How can similar cases prevent those who are willing to repay but are unable to repay from being "criminalized"? Regarding the above issues, a reporter from Huashang Daily Gale News interviewed lawyer Liu Kongsheng, a senior partner of Shandong Chenze Law Firm.
"After reading the facts of this case and the trial process, I am deeply saddened by the phenomenon of meddling in economic disputes by criminal means in the field of criminal proceedings. In particular, in cases of fraud crimes, many case-handling organs on the intersection of civil and criminal issues do not have a solid theoretical foundation and unclear ideas for handling cases, resulting in repeated wrongful cases. ”
Liu Kongsheng introduced that the crime of credit card fraud refers to the use of credit cards to carry out fraudulent activities for the purpose of illegal possession and defraud a relatively large amount of property. Objectively, the following acts are committed, which constitutes a crime: (1) using a forged credit card, or using a credit card fraudulently obtained with false identification; (2) Using an invalid credit card; (3) Fraudulently using another person's credit card; (4) Malicious overdraft.
He pointed out that if the amount of credit card fraud is relatively large, the statutory penalty is fixed-term imprisonment of not more than five years or criminal detention; where the amount is huge, the statutory sentence is between 5 and 10 years imprisonment; where the amount is especially huge, the legally-prescribed sentence is 10 or more years imprisonment or life imprisonment, and both are fined. Particularly large amounts may be subject to confiscation of property. Among them, the starting points of malicious overdraft credit card fraud are 50,000 yuan, 500,000 yuan, and 5 million yuan respectively.
Liu Kongsheng pointed out that whether it constitutes a malicious overdraft for the purpose of illegal possession, a judgment should be made based on the cardholder's credit history, ability and willingness to repay, the status of the credit card applied for and overdrafted, the use of the overdrawn funds, the performance after the overdraft, and the reasons for failing to repay the loan in accordance with the regulations. The purpose of illegal possession must not be determined solely on the basis of the fact that the cardholder has failed to repay the loan in accordance with regulations.
"In any of the following circumstances, it shall be found to be 'for the purpose of illegal possession', except where there is evidence proving that the cardholder truly did not have the purpose of illegal possession: (1) Clearly knowing that the cardholder has no ability to repay the loan but is unable to return a large amount of overdraft; (2) Applying for a credit card overdraft with false credit certificates, but unable to return it; (3) Evading bank collection by means such as escaping or changing contact information after the overdraft; (4) Evading or transferring funds, concealing assets, or evading repayment; (5) Using overdrawn funds to carry out criminal activities; (6) Other situations of illegally taking possession of funds and refusing to return them. ”
Liu Kongsheng said that if there is no subjective intention of illegal possession at the time of overdraft, and if the overdraft is unable to repay due to objective reasons such as economic difficulties, and there is no intentional evasion of repayment, it shall not be found to be a "malicious overdraft".
"In handling such cases, special attention should be paid to examining the subjective mentality of cardholders when they overdraft, as well as the objective reasons for failing to repay the loan in time, so as to avoid mistakenly treating economic disputes as criminal offenses, let alone artificially treating economic disputes as criminal offenses for improper purposes, or even 'criminalizing debts'." Liu Kongsheng finally emphasized.
Huashang Daily Gale News reporter She Hui Editor Dong Lin
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