The Analysis Of The Criminal Law Of Illegal Cashing Out With POS Machines Conducted By The Specific Appointed Merchant

As the market economy of our country develops, the market of credit card is becoming bigger and bigger. The increasing number of the credit card has made it convenient for us to reach quick transactions, which shows quite obviously in the field of consumption. At the same time, the crime about the credit card has also grown faster and faster of which cash by using POS machines is the typical form. The POS machine can quickly distinguish the credit card and then send information of transactions to the bank, which contributes to the transaction settlement. The function mentioned above has made it possible for the criminals to illegally cash from the the credit card. The cases exposed recently indicate that cash by using POS machines has become a industry chain involving large amounts of money, which heavily violate the management order of credit card and increase the risk of money liquidity. But there has been great controversy about the validity and rationality since the Supreme People’s Court and Supreme People’s Procuratorate interpreted the specific appointed Merchant’s cashing out with POS machines as the crime of illegal business operations in order to maintain the order of the society. In addition, there is also doubt in how to applied the law practically. So it is necessary for us to study this.The first part will introduce this phenomenon from describing the present situation, the detriments and the causes about cash by using POS machines. As for the present situation about that, the crime of cashing by using POS machines can not be wiped out completely and dresses in different kinds of forms. When it comes to the detriments, cash by using POS machines will cause bad effects to the safety of bank capital, the financial administrative system and credit of individuals who own credit cards. In the respect of causes, it is quite complicated to find out the causes that can be attributed to the card owner, the merchant or the bank, which if succeed in doing that will contribute to effective pertinence of management and striking range control. The expounding about the three mentioned is aimed at foreshadowing the determination of crime in the following paragraphs.The second part will expound in detail on the necessity, validity, and rationality about the clause in the judicial interpretation conducted by the Supreme People’s Court and the Supreme People’s Procuratorate in December 2009 that consider the merchant’s cashing by using POS machines as the crime of illegal business operations. Whether it is necessary to consider that as crime is controversial when we are facing the condition that cashing by using POS machines appears a lot. Whether the crime conforms to the principal of secondary crime is doubtful. In addition, it is also uncertain that the crime’s only punishing the specific appointed merchant conforms to the theory of fellowship in crime. As for these questions, the author holds the view that it is necessary to regulate cashing by using POS machines by the means of criminal law. The provision of this judicial interpretation not only accords with the criminal law, but also the theory of fellowship in crime. The reasons are below: First, it has been impossible for the existing administrative legal norm to restraint the flourishing of cashing by using POS machines because of its validity lowliness and limited regulation. Second, cashing by using POS machines infringes the financial administrative system and the safety of bank capital disastrously. Third, this behavior is “illegal fund payment and settlement business behavior” and accords with the provisions in Criminal law of the people’s Republic of China and Law of the People’s Republic of China on Commercial Bank and can be punished according to the criminal law and administrative law. Fourth, mere punishing the specific merchant reveals the key point and accords with the theory of fellowship in crime.The third part will analysis whether the several forms of cashing by using the POS machines can be considered as the crime of illegal business operations and possible situation of the imaginative joiner when specific merchant cashes by using POS machines.As for the cashing behavior that lacks the purpose of getting the illegal profit, the act of which the subjects of crime are coincident, the behavior of which the owner merely keeps the card, whether we should consider these as the crime of illegal business operations is still doubtful. As for this, the author hold the view that first, the specific appointed merchant’s cashing out with the purpose of getting illegal profit does not accord with the constitution of the crime of illegal business operations. Second, although the owner’s mere keeping the card with the help of the specific appointed merchant does not accord with the judicial interpretation, it is criminous because it brings great harm and accords with the provision “illegal fund payment and settlement business behavior”. The third, it should be considered criminous when it comes to the subject coincidence between the specific appointed merchant and the credit card owner, the harmfulness of this form of cashing out is the same as the ordinary one. We could deal with purpose of the doer’s getting profit distinguishingly and modify the payment behavior by taking the behavior of cashing out as the behavior of payment.There will be the imaginative joiner between the crime of fraud on credit card and the crime of illegal business operations when the specific appointed merchant bear the purpose of possessing illegally. Otherwise, there will be situation of the imaginative joiner of offense between the crime of illegal business operations and the crime of obtaining loan, or the crime of specific money laundering. The author thinks that when it comes to the situation that he behavior of the specific appointed merchant owner bear the purpose of possessing illegally, we should consider that as two different. First, there will be imaginative joiner between the crime of illegal business operations and the crime of credit card fraud when the card owner cashes with the help of the specific appointed merchant and bear the purpose of possessing illegally at the beginning of the behavior, and the behavior of the specific appointed merchant should be considered as the crime of credit card fraud. Second, there will be no situation of imaginative joiner when the credit card owner begins to bear the purpose of possessing illegally just after he has arranged overdraft, and the behavior of the specific appointed merchant should be considered as illegal business operations. As for the situation that the owner does not bear the purpose of possessing illegally. We can process as the following. First, we should consider that as the crime of illegal business operations in spite of the coincidence of the subjects when it comes to imaginative joiner between the crime of illegal business operations and the crime of loan fraud. Second, as for the imaginative joiner between the crime of illegal business operations and specific money laundering crimes, we should take different situations into consideration. When the specific appointed merchant launders for himself, there will be the imaginative joiner between the crime of illegal business operations and specific money laundering. Although mere money laundering is not criminous, We should combined punishment for the crime of illegal business operations and specific crime upstream when the behavior is about business. When the specific appointed merchant launders for others, there will be the imaginative joiner between the crime of illegal business operations and the crime of money laundering or the crime of covering up or concealing criminal gains and criminal benefits. When it comes to the imaginative joiner between illegal business operations and the crime of money laundering, we can consider the behavior as either the crime of illegal business operations or the crime of money laundering. When it comes to the imaginative joiner between illegal business operations and crime of covering up or concealing criminal gains and criminal benefits, generally we should consider the behavior as the crime of illegal business operations and crime of covering up or concealing criminal gains and criminal benefits in special circumstances.