Research On The Illegally Engaging In Fund Payment And Settlement Business

With the development of China’s economic recently, currency has been makingan increasingly prominent role in market transactions and funds to pay settlement hasbeen becoming more and more important in economic activities. Because of"Payment and Settlement" Article6, the bank is a legitimate subject engaged in fundpayment and settlement business, it is illegal for each unit or individual to act asintermediary in payment and settlement business without the approval of People’sBank of China. Considering that engaged in illegal funds in the payment andsettlement business poses a great threat to financial security of our country, theprovisions of article5of Standing Committee of the National People’s Congress inFebruary28,2009" Amendment (VII) to the Criminal Law of the People’s Republicof China" increased " illegally engaging in fund payment and settlement business" asthe fourth type of illegal business.So that " illegally engaging in fund payment andsettlement business" was officially incorporated into the criminal regulation. However,under the combined effect of the law, the reality, the concept and many other factors,the judicial practice of illegal engaging in fund payment and settlement businessemerged the expansion problems. Under the inadequate legal basis, the judicial organsput many market misconduct such as illegal bill l discount into the category of"illegally engaging in fund payment and settlement business" to be criminalsanctions. Such unreasonable expansive phenomena should be limited. However, it appears intensified development trend currently. It’s necessary to limit this expansionphenomenon. As the theory research in illegally engaging in fund payment andsettlement business is still scare for the jurisprudence, the research practice will haveimportant theoretical and practical significance. In addition to the introduction andconclusion, this article altogether is divided into four parts.The first chapter is related overview of fund payment and settlement business. Inthe commodity economy, circulation of commodities, services providing, theallocation of funds and other economic activities, must be carried out by means ofcurrency valuating and settling. This currency payment behavior is the fund paymentand settlement. It belongs to the bank’s intermediary business essentially, which hasprofitable nature. According to the different payment and settlement tools, the fundpayment and settlement is divided into traditional and electronic two kinds. UnderChina’s current financial system, the legal subject to engage in fund payment andsettlement business is commercial bank and credit cooperative.The second chapter is types and the status of judicial practice of the illegallyengaging in fund payment and settlement business. The illegally engaging in fundpayment and settlement business three types, including underground bank, credit cardcashing out and illegal bill discount. The first section is the study of undergroundbanks and the status of its judicial practice. The underground bank as a form of illegalfinancial institutions like commercial banks, usually its main business is depositingfrom the public and engaging in fund payment and settlement business. Uundergroundbanks are divided into currency, the exchange and comprehensive three types. Thissection cites an instance, to be known as Shanghai’s first foreign underground case byLuo Huaitao. Through this case, we conclude that the underground into the crime ofillegal business operation is the embodiment of judicial justice. The second section isthe study of credit card cashing out and the status of its judicial practice. Credit cardcashing out, refers to the cardholder and merchants, in violation of the agreement withthe issuing bank, making use of a false trading mode, converting the credit amount inits limits into cash, which mainly comprises two cashing out methods, through a POSmachine and internet. This section cites an instance, to be known as China’s first POS machine cashing out by Xu Zhisheng. Through this case, we conclude that put creditcard cashing out into the crime of illegal business operation is the embodiment ofjudicial justice. The third section is the study of illegal bill discount and the status ofits judicial practice. Illegal bill discount, refers to the behavior of the unqualified unitor individual’ s bill discount for the noteholders. It includes broker type and privatefinancing type. This section cites an instance, to be known as China’s first case ofputting illegal bill discount into Illegal business crime by Wang Jing, whichcontributes to the analysis of the status of judicial practice of illegal bill discount. Atthe same time, we analyze that the illegal bill discount should not be putted into thecategory of illegally engaging in fund payment and settlement business, which fromtwo aspects of the legal nature and the social harmfulness. Through this case, weconclude that put illegal bill discount into the crime of illegal business operation is theembodiment of judicial expansion.The third chapter is the drawbacks and reasons of the expansion of judicialpractice in the field of illegally engaging in fund payment and settlement business.This section firstly expounds its disadvantage from three aspects, including conflictwith the principle of legality, destroy the modesty of criminal law,and contrary withthe value orientation of the market economy. Secondly expounds the reasons fromfour aspects, including deficiency of legality consciousness, the unsound financiallaws and regulations system, the unreasonable current judicial system, and the need tocombat economic crime practical situation.The last chapter is the limitation of the expansion of judicial practice in the fieldof illegally engaging in fund payment and settlement business. Firstly, from the legalperspective to perfect the relevant financial laws and regulations, optimize the billdiscount market. Specifically, clearly define the legal nature of the settlement andpayment of funds and illegal bill discount behavior, moderately expanse the subjecteligibility of market operating, and perfect the regulatory mechanism bills discountmarket. Secondly, adhere to the principle of legality, and strengthen the advancedconcept of law education, in order to achieve the perfect combination of the advancedconcept of law and the specific judicial practice. Finally, from the reality perspective to deepen the reform of the judicial system, improve the judicial supervisionmechanism. Specifically, accelerate the reform of the personnel system in judicialauthority, and scientific improve the judicial supervision departments and strengthenthe supervision power.