Recently, by the Beijing King&Capital Law Firm LiMingZhen lawyers defense of W a suspected fund payment settlement type illegal business crime, in the gold rescue 37 days successfully bail, for the parties to fight for the Spring Festival before the valuable reunion and freedom.

I. Background of the case

W has been engaged in the resale card business with its own funds, before the case, the superiors said in good name to inform them of a cost-saving method, will be a company as the so-called card purchasers will be up to ten million of the purchase of the card funds to the shopping card issuance shopping malls; and then W went to the shopping malls to collect a company funded the purchase of shopping cards and invoices, and thereafter the individual will be card for sale. Finally, in accordance with the previous and funded the card company to negotiate the proportion of deduction as a retained profits, the remaining money and then transferred back to the card company provided by the owner of the control of the personal account. Thus completing the entire case behavior.

Second, fast meeting, study the case

Because the family entrusted is not sure of the crime, defense lawyers initially judged that this behavior may be suspected of funds payment and settlement type of illegal business crime, so the first time to study such cases, and rapid meeting.

According to the standard of prosecution for illegal business crime, illegal payment and settlement business amounting to more than 5 million yuan and illegal income of more than 100,000 yuan constitutes the “aggravating circumstances”. In practice, the amount of money involved in the resale of shopping cards is very easy to reach the standard.

Article 225 of the Criminal Law, the third item of the “funds payment and settlement business” for the “underground money changers” and other financial arbitrage behavior, need to have "funds across the main body to transfer, to circumvent financial supervision The core feature of “transferring funds across subjects and circumventing financial regulation”. Therefore, the focus of this case is to study whether the transfer of funds across the main body, and whether the perpetrator is aware of their own behavior in violation of state regulations, and hope or let the “disruption of market order” results.

(I) What is inter-subject transfer of funds?

Illegal business crime, especially in the context of illegal fund payment and settlement business, the transfer of funds across subjects refers to the following: without the approval of the competent state departments, the perpetrator, in the role of an intermediary or a channel, will be the funds between different independent legal subjects to implement the collection, transfer, secondary clearing of illegal funds flow behavior, the core is to break through the payment and settlement license, out of the supervision, and act as a fund “two clearing” intermediary. The core is to break through the payment and settlement license, detach from the supervision, and act as the “second clearing” intermediary of funds. Such as unit funds in the absence of real transactions into personal accounts to realize the cash or transfer funds across different subjects.

1. The subject of the difference: must be two independent legal subjects, such as from the company's public account to individual private account;

2. The illegality of the transfer behavior: not obtaining the Central Bank's “payment business license”, but “collection and payment, funds collection, secondary clearing, channel transfer” and other ways, in the actual control between the payee and the handler, handling, distribution of funds.

3. Separation from supervision: in order to avoid supervision, the funds flow between different accounts, forming a pool of funds, and making profits.

(B) how to determine the subjective intent?

1. Subjective intent to focus on two levels:

(1) Knowledge of the “nature of the settlement of funds”.

Actors need to realize that their behavior is not simply shopping card trading, but in the role of “financial intermediary”. According to the Supreme Court's interpretation of the crime of “underground money changers”, the core of fund payment and settlement is “intermediary service of monetary payment and fund clearing”. This means that the perpetrator must know that he or she is assisting others to complete the transfer of funds across the main body, cash or extracorporeal circulation, rather than only “card to money” exchange of goods.

(2) Awareness of "illegality

That is, the perpetrator knows that the funds settlement behavior without the approval of the national financial regulatory authorities (such as the People's Bank of China). In practice, this knowledge does not require explicit knowledge of specific legal provisions, but only combined with its behavioral patterns, such as avoiding bank settlements, charging a “handling fee” or “withdrawal fee” or background, education, penalties and other comprehensive judgment.

2. Determination standard of intentionality in judicial practice: presumption of subjective state from objective behavior

(1) Is the transaction mode “intermediated”?

If the practice is to set up a “fund transfer station” to provide customers with an integrated service of “card purchase to cash withdrawal”, it may be recognized as having the characteristics of “intermediation”. For example: the upstream as a nominal card purchaser to pay the purchase price of the card, the perpetrator for the card purchaser to provide “on behalf of the payment” “cash” services, and then assist in the transfer of the above funds back to the upstream card. This closed-loop operation of “money first, then to the card, then to the money” is highly likely to be recognized as the subjective intent of the “settlement intermediary”.

If you only collect and sell cards to scattered individuals, and do not take the initiative to dock the upstream and downstream capital needs, then the subjective intent is negated.

(2) Is the basis of profitability “withdrawal fees”, “handling fees” or the difference in card prices?

If the perpetrator takes “handling fee”, “withdrawal fee”, “channel fee” as the main source of income, rather than the difference in card price. For example, if the perpetrator agrees to charge the so-called “handling fee” as a percentage of the capital flow or a fixed fee before the commencement of the act, instead of charging the profit as a percentage of the difference in the resale of the card, it directly reflects that the perpetrator's purpose is to provide capital services.

(3) Is the flow of funds “hidden”?

If the perpetrator, in order to avoid triggering the bank's monitoring of large-value transactions, uses multiple accounts to split transfers, or uses other people's bank cards, uses cash or virtual currency to circumvent bank supervision, or forges transaction records to conceal the true flow of funds, then it is likely to be recognized as having a clear subjective intent. On the contrary, if the flow of funds is transparent, the use of my real name account, the transaction records can be traced back to the real individual, then it can be used as a basis for arguing against subjective intent.

(4) Does the past experience of the perpetrator reflect knowledge?

In practice, but also to review the actor's past education, work experience and whether there is relevant behavior of the previous record to further argue intuitive knowledge.

Third, specific analysis, smooth bail

Defenders in the study and analysis of the completion of the funds payment and settlement type of relevant laws and regulations and practice standards, combined with the specific circumstances of the case, that: although now in hindsight, W a behavior involved in the above does play a role in helping to buy a card objectively complete the flow of funds or the role of withdrawing money, but it really lacks the subjective intent of the funds settlement. After the defense from its education, the whole behavior pattern (not involved in the upstream personnel of any discussion, not with the card company personnel to establish contact, not to hide any water flow towards); profit situation (not from the high profit), illegal record (no previous criminal record), subjective understanding of the content (not clear about the purchase of the card involved in the source of funds and the nature of the card) and so on the comprehensive argument without subjective intent, and emphasized that the perpetrator does not have any personal danger is neutral to help the cardholder to complete the flow of funds or withdraw cash. Any personal danger is neutral help behavior, fully meet the conditions of bail.

Eventually the case authorities in the day before the Spring Festival holiday, the perpetrator to change the coercive measures for bail pending trial, not only to the parties to the reunion and own, but also reflects the perfect combination of judicial discipline and humane care.

Fourth, regaining freedom and reunion, is both a wake-up call and reflection

In the rapid development of the digital economy today, gift cards, shopping cards and other “prepaid consumer vouchers” transactions are increasingly frequent, but many people due to weak legal awareness, inadvertently touch the red line of compliance, and even face criminal risk. In particular, telecom fraud, theft and other criminal proceeds of funds often through the purchase of shopping cards “whitewash”, and resale card crowd will often become a tool to be utilized, because of its long-term resale, this “stolen goods + business” dual attributes, so that the judiciary is more inclined to the This dual attribute of “selling and operating” makes the judiciary more inclined to pursue the crime of illegal business operation, which carries heavier penalties. The complexity of daily economic activities has also sounded the alarm for market economic entities that only by strictly abiding by the legal red line and operating in compliance can they be stable and prosperous.