院关于办理非法从事资金支付结算业务、非法买卖外汇刑事案件适用法律若干问题的解释

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Promulgation Date: 2019-1-31
Title:最高人民法院、最高人民检察院关于办理非法从事资金支付结算业务、非法买卖外汇刑事案件适用法律若干问题的解释
[Document Number]法释〔2019〕1号
Expiration date: 
Promulgating Entities:The Supreme People's Court, The Supreme People's Procuratorate
Source of text: 人民法院报2019年2月1日第03版

The following interpretation on several issues regarding the applicable law in cases of illegally engaging in fund payment and settlement business or illegal trade in foreign currencies is made on the basis of the 'PRC Criminal Law' and the 'PRC Criminal Procedure Law' so as to punish these activities and preserve order in the financial marketplace:

Article 1: In any of the following circumstances, violations of state provisions are 'illegally engaging in fund payment and settlement business' as provided for in article 225(3) of the Criminal Law:

(一)使用受理终端或者网络支付接口等方法,以虚构交易、虚开价格、交易退款等非法方式向指定付款方支付货币资金的;

(二)非法为他人提供单位银行结算账户套现或者单位银行结算账户转个人账户服务的;

(3) Illegally providing check cashing services for others;

(4) Other circumstances of illegal engagement in fund payment and settlement business;

Article 2: 违反国家规定,实施倒买倒卖外汇或者变相买卖外汇等非法买卖外汇行为,扰乱金融市场秩序,情节严重的,依照刑法第二百二十五条第四项的规定,以非法经营罪定罪处罚。

Article 3: In any of the following circumstances, illegally engaging in fund payment and settlement business or illegal trade in foreign currencies shall be found to be illegal business operations with 'serious circumstances':

(1) Where the amount of illegal business operations was 5,000,000 or more;

(2) Where the amount of unlawful gains is 100,000 or more.

Where illegal operations amount to 2,500,000 yuan or more, or unlawful gains of 50,000 or more, and there are any of the following circumstances, the illegal business operations may be found to have 'serious circumstances':

(1) have previously been criminally prosecuted for criminal conduct of engaging in illegal fund payment or settlement business or illegal trade in foreign currencies;

(2) within the last 2 years, have previously received an administrative punishment for engaging in illegal fund payment or settlement business or illegal trade in foreign currencies;

(3) Refused to account for funds involved in the case or to cooperate with efforts to recover them, so that they cannot be recovered;

(4) Caused other serious consequences.

Article 4: In any of the following circumstances, illegally engaging in fund payment and settlement business or illegal trade in foreign currencies shall be found to be illegal business operations with 'especially serious circumstances':

(1) Where the amount of illegal business operations was 25,000,000 or more;

(2) The amount of unlawful gains is 500,000 or more;

Where illegal operations amount to 12,500,000 yuan or more, or unlawful gains of 250,000 or more, and there are any of the four circumstances provided for in the second paragraph of article 3 of this Interpretation, the illegal business operations may be found to have 'especially serious circumstances'.

Article 5: Where illegal engagement in fund payment or settlement business or illegal trade in foreign currencies constitutes the crime of illegal business operations, and also concurrently constitutes the crimes of assisting terrorist activities provided for in article 120-1 of the Criminal Law, or the crime of money laundering provided for in article 191, conviction and punishment are to be in accordance with the more serious offense.

Article 6: Where two or more instances of illegal engagement in fund payment or settlement business or illegal trade in foreign currencies should have been given administrative or criminal dispositions in accordance with law, but were not so handled, the value of illegal business operations or unlawful gains is calculated cumulatively.

Where in the same case the values of illegal business operations and unlawful gains separately constitute serious circumstances and especially serious circumstances, conviction and punishment are to be in accordance with the amount giving the heavier penalty.

Article 7: Where it is difficult to determine the amount of unlawful gains from illegal engagement in fund payment or settlement business or illegal trade in foreign currencies, determine the amount of unlawful gains as being 1/1000 of the amount of illegal business operations, and give a fine of between one and five times the amount of unlawful gains, either concurrently or as an independent penalty.

Article 8: Where meeting the standards provided for in article 3 of this interpretation, the perpetrator truthfully recounts the facts of the crime, admits guilt and repents, and actively cooperates in the investigation and return of unlawful gains, a lighter punishment may be given; or these, where the crime is slight, it may lawfully be not prosecution or punishment waived.

Where it is the requirements are met and it is within the scope of application for Criminal Procedure Law provisions on plea leniency, handle it in accordance with the Criminal Procedure Law provisions.

Article 9: Where units illegally engage in fund payment and settlement business or illegal trade in foreign currencies as provided for in articles 1 or 2 of this Interpretation, give the unit a fine and sentence and punish the directly responsible managers and other directly responsible personnel.

Article 10: The place of the crime in cases of units illegally engage in fund payment and settlement business or illegal trade in foreign currencies includes the location of accounts used by the criminal suspect or defendant in criminal activities, the place where funds were received, the location where accounts through which funds passed were opened, the location of account operations, as well as the place where funds were paid over or remitted, and so forth;

Article 11: 涉及外汇的犯罪数额,按照案发当日中国外汇交易中心或者中国人民银行授权机构公布的人民币对该货币的中间价折合成人民币计算。 中国外汇交易中心或者中国人民银行授权机构未公布汇率中间价的境外货币,按照案发当日境内银行人民币对该货币的中间价折算成人民币,或者该货币在境内银行、国际外汇市场对美元汇率,与人民币对美元汇率中间价进行套算。

Article 12: This Interpretation takes effect on February 1, 2019. 《最高人民法院关于审理骗购外汇、非法买卖外汇刑事案件具体应用法律若干问题的解释》(法释[1998]20号)与本解释不一致的,以本解释为准。

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