Interpretations of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Laws to the Hearing of Criminal Offences Impeding the Management of Credit Cards

Fa Shi [2009] No. 19

December 3, 2009

The Interpretations of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Laws to the Hearing of Criminal Offences Impeding the Management of Credit Cards adopted at the 1475th meeting of the Judicial Committee of the Supreme People's Court on October 12 and at the 22nd meeting of the eleventh Procuratorial Committee of the Supreme People's Procuratorate on November 12, 2009 are hereby promulgated and shall come into force on December 16, 2009.

(Adopted at the 1475th meeting of the Judicial Committee of the Supreme People's Court on October 12 and the 22nd meeting of the eleventh Procuratorial Committee of the Supreme People's Procuratorate on November 12, 2009)

With a view to imposing penalties for criminal offences which impede the management of credit cards according to law, maintaining the orderly management of credit cards and protecting the legitimate rights and interests of cardholders, several issues concerning the application of laws to the hearing of such criminal cases are hereby interpreted as follows in accordance with the Criminal Law of the People's Republic of China:

Article 1 Any person who forges one or more credit cards by duplicating another person's credit card, entering another person's credit card information into a medium or chip with a magnetic strip, or via any other means shall be deemed to have "forged a credit card" as stipulated in Subparagraph 4, Paragraph 1 of Article 177 of the Criminal Law and may be convicted of and sentenced on the crime of forging a financial instrument.
Any person who forges ten or more credit cards shall be deemed to have "forged credit cards" as stipulated in Subparagraph 4, Paragraph 1 of Article 177 of the Criminal Law and may be convicted of and sentenced on the crime of forging a financial instrument.
Any person who forges a credit card in any of the following circumstances shall be deemed to be subject to "aggravating circumstances" as stipulated in Article 177 of the Criminal Law:
1. The number of credit cards forged is between 5 and 25;
2. The balance of or the extent of facilities available on the forged credit cards, or the sum of both, is between RMB 200,000 and 1,000,000;
3. The number of blank credit cards forged is between 50 and 250; or
4. Other aggravating circumstances.
Any person who forges credit cards in any of the following circumstances shall be deemed to be subject to "extreme aggravating circumstances" as stipulated in Article 177 of the Criminal Law:
1. The number of credit cards forged exceeds 25;
2. The balance of or the extent of facilities available on the forged credit cards, or the sum of both, exceeds RMB 1,000,000;
3. The number of blank credit cards forged exceeds 250; or
4. Other extreme aggravating circumstances.
"The balance of or the extent of facilities available on the forged credit cards" as stated in this Article refers to the maximum balance or extent of facilities recorded by the issuing bank(s) after the credit cards are forged.

Article 2 Where a person holds or transports forged blank credit cards despite being aware that such cards are forged and the number of cards involved is between 10 and 100, the matter shall be deemed to involve a "comparatively large amount" as stipulated in Subparagraph 1, Paragraph 1 of Article 177 of the Criminal Law; where a person illegally holds credit cards belonging to others and the number of cards involved is between 5 and 50, the matter shall be deemed to involve a "comparatively large amount" as stipulated in Subparagraph 2, Paragraph 1 of Article 177 of the Criminal Law.
Under any of the following circumstances, the matter shall be deemed to involve a "very large amount" as stipulated in Paragraph 1 of Article 177 of the Criminal Law:
1. Holding or transporting 10 or more credit cards despite being aware that they are forged;
2. Holding or transporting 100 or more blank credit cards despite being aware that they are forged;
3. Illegally holding 50 or more credit cards belonging to other persons;
4. Obtaining 10 or more credit cards by fraud using a forged identification card; or
5. Selling, purchasing or providing to others 10 or more credit cards which are forged or are obtained by fraud using a forged identification card.
Any person who applies for and obtains a credit card by using another person's identification including a resident identification card, a military officer's identification, a military soldier's identification, a Mainland Travel Permit for Hong Kong and Macao, a Mainland Travel Permit for Taiwan Residents, a passport, etc., without permission, or by using forged or altered identification shall be deemed to have "obtained a credit card by fraud using forged identification" as stipulated in Subparagraph 3, Paragraph 1 of Article 177 of the Criminal Law.

Article 3 Any person who steals, purchases or illegally provides another person's credit card information which is sufficient for forging a serviceable credit card or enabling a third party to make payments with the credit card in the name of the cardholder shall, if the number of credit cards involved is between 1 and 5, be convicted of and sentenced on the crime of "stealing, purchasing or illegally providing credit card information" as stipulated in Paragraph 2 of Article 177 of the Criminal Law; if the number of credit cards involved exceeds 5, the matter shall be deemed to involve "a large amount" as stipulated in Paragraph 1 of Article 177 of the Criminal Law.

Article 4 Any person who compiles or provides a false credit reference relating to property, income or work position for a credit card applicant shall, if he/she forges, alters or trades in documents, certificates or seals of national organs or the matter relates to the forging of seals of companies, enterprises, work units or people's organizations, be prosecuted on the criminal charge of forging, altering or trading in documents, certificates or seals of national organs or of forging seals of companies, enterprises, work units or people's organizations, respectively, in accordance with Article 280 of the Criminal Law.
Any agency or staff member thereof engaged in providing asset appraisal, capital verification, authentication, accounting, auditing or legal services that provides a false credit reference relating to property, income or work position for a credit card applicant shall be prosecuted on the criminal charge of providing a false reference or issuing a reference with a major inaccuracy, respectively, in accordance with Article 229 of the Criminal Law.

Article 5 Any person who carries on credit card fraud by using a forged credit card, a credit card obtained by fraud using a forged identification card, an obsolete credit card or another person's credit card without permission shall, where the sum involved is between RMB 5,000 and 50,000, be deemed to have committed an offence involving a "comparatively large amount" as stipulated in Article 196 of the Criminal Law; where the sum is between RMB 50,000 and 500,000, the matter shall be deemed to involve a "very large amount" as stipulated in Article 196 of the Criminal Law; where the sum exceeds RMB 500,000, the matter shall be deemed to involve an "extremely large amount" as stipulated in Article 196 of the Criminal Law.
"Using the credit card of another person without permission" as stated in Subparagraph 3, Paragraph 1 of Article 196 of the Criminal Law refers to the following circumstances:
1. Picking up and using another person's credit card;
2. Defrauding another person of his/her credit card and using such card;
3. Obtaining another person's credit card information by stealing or purchasing it or through fraud or other illegal means and using such information on the internet or a communication terminal; and
4. Other circumstances in which another person's credit card is used without permission.

Article 6 Any cardholder who exceeds the stipulated credit limit for the card or uses the card after the stipulated expiry date for the purpose of illegal possession and fails to make repayment within three months of receiving a second reminder from the issuing bank shall be deemed to have "maliciously exceeded a credit limit" as stipulated in Article 196 of the Criminal Law.
Under any of the following circumstances, the cardholder shall be deemed to have acted "for the purpose of illegal possession" as stipulated in Paragraph 2 of Article 196 of the Criminal Law:
1. Using a large amount of credit despite being aware of his/her inability to make repayments when the obligation is due;
2. Squandering credit without being able to make repayments when the obligation is due;
3. Absconding or changing one's contact details after going into debt to avoid the banks' reminders;
4. Removing or transferring funds or concealing property to avoid repayments;
5. Carrying on criminal activities using credit; and
6. Other activities in which funds are obtained in an illegal manner and refusing to make repayments.
Where the total amount of credit taken out with malicious intent is between RMB 10,000 and 100,000, the matter shall be deemed to involve a "comparatively large amount" as stipulated in Article 196 of the Criminal Law; where the sum is between RMB 100,000 and 1,000,000, the matter shall be deemed to involve a "very large amount" as stipulated in Article 196 of the Criminal Law; where the sum exceeds RMB 1,000,000, the matter shall be deemed to involve an "extremely large amount" as stipulated in Article 196 of the Criminal Law.
The total amount of credit taken out with malicious intent refers to the sum the cardholder refuses to repay or has not repaid under any of the circumstances stipulated in Paragraph 1. It does not include charges made by the issuing bank such as compound interest, overdue fees, commission charges, etc.
Any person who takes out credit with malicious intent shall be subject to criminal prosecution. However, he/she shall be given a lenient sentence if he/she repays both the interest and the principal owing on the debt after the public security organ files the case and before the people's court delivers its judgment and shall be absolved from any penalty in cases involving minor circumstances. Any person who obtains a comparatively large amount of credit with malicious intent but repays both the interest and the principal owing on the debt after the public security organ files the case shall be absolved from criminal liability in cases involving negligible circumstances.

Article 7 Any person who, in violation of state provisions, makes a direct cash payment to a cardholder using a terminal machine (POS machine) by means of false trading, trading on the basis of false prices, or canceling an order through a cash refund shall, where there are aggravating circumstances, be convicted of and sentenced on the crime of illegal operations in accordance with Article 225 of the Criminal Law.
Where the sum involved in the aforesaid activity exceeds RMB 1,000,000, the amount owing to the financial institution exceeds RMB 200,000, or the loss of the financial institution exceeds RMB 100,000, the matter shall be deemed to involve "aggravating circumstances" in accordance with Article 225 of the Criminal Law; where the sum involved in the aforesaid activity exceeds RMB 5,000,000, the amount owing to the financial institution exceeds RMB 1,000,000, or the loss of the financial institution exceeds RMB 500,000, the matter shall be deemed to involve "highly aggravating circumstances" in accordance with Article 225 of the Criminal Law.
Any cardholder who goes into credit for the purpose of illegal possession via any of the aforesaid means shall be subject to criminal prosecution on the charge of fraud by credit card in accordance with Article 196 of the Criminal Law.

Article 8 Where an entity commits any of the offences specified in Articles 1 and 7 of these Interpretations, the conviction and penalty shall be entered and determined in accordance with the criteria for convictions and penalties set forth in these Interpretations.