· Document Number：No. 19 [2009] Judicial Interpretation

· Area of Law： Banking & Finance

· Level of Authority： Judicial Interpretation

· Date issued：12-03-2009

· Effective Date：12-16-2009

· Issuing Authority： Supreme People's Court Supreme People's Procuratorate

· Status： Effective

Announcement of the Supreme People's Court and the Supreme People's Procuratorate
The Interpretation of the Supreme People's Court and the Supreme People's Procuratorate of Several Issues concerning the Specific Application of Law in the Handling of Cases of Crimes Disturbing the Administration of Credit Cards, which was adopted at the 1475th meeting of the Judicial Committee of the Supreme People's Court on October 12, 2009 and at the 22nd meeting of the eleventh Procuratorial Committee of the Supreme People's Procuratorate on November 12, 2009, is hereby promulgated and shall come into force on December 16, 2009.
December 3, 2009
Interpretation of the Supreme People's Court and the Supreme People's Procuratorate of Several Issues concerning the Specific Application of Law in the Handling of Cases of Crimes Disturbing the Administration of Credit Cards
(No. 19 [2009] Judicial Interpretation)
To legally punish criminal activities disturbing the administration of credit cards and maintain the administrative order of credit cards and the legitimate rights and interests of cardholders, in accordance with the Criminal Law of the People's Republic of China, several issues concerning the specific application of law in the handling of such criminal cases are hereby interpreted as follows:
Article 1 Whoever forges one or more credit cards by duplicating another person's credit card, by entering another person's credit card information into a magnetic strip medium or chip or by any other means shall be deemed to have “forged credit cards” as mentioned in subparagraph (4), paragraph 1 of Article 177 of the Criminal Law and shall be convicted of and punished for the crime of forging financial instruments.
Whoever forges 10 or more blank credit cards shall be deemed to have “forged credit cards” as mentioned in subparagraph (4), paragraph 1 of Article 177 of the Criminal Law and shall be convicted of and punished for the crime of forging financial instruments.
Any of the following circumstances of credit card forgery shall be deemed a “serious circumstance” as mentioned in Article 177 of the Criminal Law:
(1) forging not less than 5 but not more than 25 credit cards;
(2) the deposit balance or credit line of a single forged credit card or the total deposit balance or credit line of all forged credit cards is not less than 200,000 yuan but not more than 1 million yuan;
(3) forging not less than 50 but not more than 250 blank credit cards; or
(4) any other serious circumstance.
Any of the following circumstances of credit card forgery shall be deemed an “especially serious circumstance” as mentioned in Article 177 of the Criminal Law:
(1) forging 25 or more credit cards;
(2) the deposit balance or credit line of a single forged credit card or the total deposit balance or credit line of all forged credit cards is 1 million yuan or more;
(3) forging 250 or more blank credit cards; or
(4) any other especially serious circumstance.
The phrase “deposit balance or credit line” of a credit card as mentioned in this Article shall be calculated on the basis of the highest deposit balance and credit line recorded by the card issuing bank after the credit card is forged.
Article 2 Whoever knowingly holds or transports not less than 10 but not more than 100 forged blank credit cards shall be deemed to have met the condition of “a larger quantity” as mentioned in subparagraph (1), paragraph 1 of Article 177–A of the Criminal Law. Whoever illegally holds not less than 5 but not more than 50 credit cards of others shall be deemed to have met the condition of “a larger quantity” as mentioned in subparagraph (2), paragraph 1 of Article 177–A of the Criminal Law.
Whoever falls under any of the following circumstances shall be deemed to have met the condition of “huge quantity” as mentioned in paragraph 1 of Article 177–A of the Criminal Law:
(1) knowingly holding or transporting 10 or more forged credit cards;
(2) knowingly holding or transporting 100 or more forged blank credit cards;
(3) illegally holding 50 or more credit cards of others;
(4) fraudulently applying for 10 or more credit cards by using false identity certificates; or
(5) selling, purchasing or providing others with 10 or more forged credit cards or credit cards fraudulently obtained by using false identity certificates in the course of application.
Whoever applies for a credit card by using another person's resident identity certificate, army ID card for a military officer or soldier, permit for a Hong Kong or Macau resident to travel to and from mainland China, permit for a Taiwan resident to travel to and from mainland China, passport or any other identity certificate against the will of the person or by using any forged or tampered identity certificate shall be deemed one “fraudulently applying for a credit card by using a false identity certificate” as mentioned in subparagraph (3), paragraph 1 of Article 177–A of the Criminal Law.
Article 3 Whoever steals, buys or illegally provides credit card information of others, enough for forging a usable credit card for transactions or enough for another person to conduct transactions in the name of the credit card holder, shall be convicted of and punished for the crime of stealing, buying or illegally providing credit card information according to paragraph 2 of Article 177–A of the Criminal Law if the quantity of credit cards involved is not less than 1 but not more than 5. If the quantity of credit cards involved is 5 or more, it shall be deemed a “huge quantity” as mentioned in paragraph 1 of Article 177–A of the Criminal Law.
Article 4 Whoever produces or provides any false credit certification material on property status, income, job, etc. for a credit card applicant, involving forging, tampering, purchasing or selling official documents, certificates or seals of state organs or involving forging seals of companies, enterprises, public institutions or people's organizations, punishable under criminal law, shall be convicted of and punished for the crime of forging, tampering, purchasing or selling official documents, certificates or seals of state organs or the crime of forging seals of companies, enterprises, public institutions or people's organizations according to Article 280 of the Criminal Law.
An intermediary organization performing the functions of asset evaluation, capital verification, certification, accounting, auditing, legal services, etc. and any staff member thereof which provide any false credit certification material on property status, income, job, etc. for a credit card applicant, punishable under criminal law, shall be convicted of and punished for the crime of providing false certification documents and the crime of issuing certification documents grossly inconsistent with the facts according to Article 229 of the Criminal Law respectively.
Article 5 Whoever commits any credit card fraud by using a forged credit card, a credit card fraudulently obtained with a false identity certificate in the course of application or an invalidated credit card or by falsely using another person's credit card shall be deemed to have met the condition of “a larger amount” as mentioned in Article 196 of the Criminal Law if the involved amount is not less than 5,000 yuan but not more than 50,000 yuan; shall be deemed to have met the condition of “a huge amount” as mentioned in Article 196 of the Criminal Law if the involved amount is not less than 50,000 yuan but not more than 500,000 yuan; or shall be deemed to have met the condition of “an especially huge amount” as mentioned in Article 196 of the Criminal Law if the involved amount is 500,000 yuan or more.
The phrase “falsely using another person's credit card” as mentioned in subparagraph (3), paragraph 1 of Article 196 of the Criminal Law shall include the following circumstances:
(1) finding another person's lost credit card and using it;
(2) fraudulently obtaining another person's credit card and using it;
(3) obtaining the credit card information of another person by theft, purchase, fraud or any other illicit means and using it via an Internet or communication terminal, etc.; and
(4) other circumstances of falsely using another person's credit card.
Article 6 A credit card holder who, for the purpose of illegal possession, makes an overdraft beyond the prescribed limit or beyond the prescribed time limit and fails to repay the overdraft within three months after the card issuing bank demands repayment twice shall be deemed to have committed a “malicious overdraft” as mentioned in Article 196 of the Criminal Law.
A credit card holder who falls under any of the following circumstances shall be deemed to have “the purpose of illegal possession” as mentioned in paragraph 2 of Article 196 of the Criminal Law:
(1) making an overdraft in a large amount whiling knowing his inability to repay it and failing to repay it;
(2) extravagantly spending the overdraft and failing to repay it;
(3) fleeing or changing his contact information after making an overdraft to avoid repayment demand from the bank;
(4) illegally withdrawing or transferring funds or hiding property to evade repayment;
(5) committing illegal or criminal activities with an overdraft; or
(6) any other conduct of illegally possessing and refusing to return funds.
For a malicious overdraft, if the amount is not less than 10,000 yuan but not more than 100,000 yuan, it shall be deemed “a larger amount” as mentioned inArticle 196 of the Criminal Law. If the amount is not less than 100,000 yuan but not more than 1 million yuan, it shall be deemed “a huge amount” as mentioned in Article 196 of the Criminal Law. If the amount is 1 million yuan or more, it shall be deemed “an especially huge amount” as mentioned in Article 196 of the Criminal Law.
The amount of a malicious overdraft refers to the amount that the cardholder refuses to repay or the remaining amount to be repaid under the conditions as prescribed in paragraph 1 hereof, excluding compound interest, late fees, handling charges and other fees charged by the card issuing bank.
Whoever commits any malicious overdraft punishable under criminal law may be given a lighter punishment, or if the circumstances are minor, may be exempt from punishment, provided that he has fully repaid the overdraft amount and interest thereon after the public security organ placed the case on file and before the people's court announces a sentence. If the amount of the malicious overdraft is a larger amount but the offender has fully repaid the overdraft amount and interest thereon before the public security organ places the case on file, and the circumstances are obviously minor, he may be exempt from criminal liability according to law.
Article 7 Whoever, in violation of the relevant provisions of the state, directly pays cash to a credit card holder in the way of fictitious transaction, false price, cash for goods returned, etc. by using any device of point of sales (POS device) or other means shall be convicted of and punished for the crime of illegal business operation according to Article 225 of the Criminal Law if the circumstances are serious.
If the aforesaid offense involves a total amount of 1 million yuan or more, causes overdue funds of financial institutions of 200,000 yuan or more, or causes economic losses of 100,000 yuan or more to financial institutions, the offender shall be deemed to have fallen under the “serious circumstances” as mentioned in Article 225 of the Criminal Law. If the aforesaid offense involves a total amount of 5 million yuan or more, causes overdue funds of financial institutions of 1 million yuan or more, or causes economic losses of 500,000 yuan or more to financial institutions, the offender shall be deemed to have fallen under the “especially serious circumstances” as mentioned in Article 225 of the Criminal Law.
A cardholder who makes a malicious overdraft in any of the aforesaid ways for the purpose of illegal possession, punishable under criminal law, shall be convicted of and punished for the crime of credit card fraud according to Article 196 of the Criminal Law.
Article 8 An entity which commits a crime as prescribed in Article 1 or Article 7 of this Interpretation shall be convicted and punished according to the criteria as set out in that Article.