Relatives lend bank accounts to each other, and individuals lend bank accounts to company ......
Renting and lending bank accounts in everyday life.
is a common phenomenon, but what many people don't know is that this behavior has been violated.
It is also very likely that the perpetrator will also be responsible for China's financial management regulations.
Corresponding civil liability and even criminal liability.
Read down and find out!
Typical cases
Case 1Lending bank accounts between relativesDefendant Liu handed over the bank card in his name to defendant Guo (Liu's mother) for possession and use, and Guo used the bank account to receive loans for a long time. According to the facts ascertained by the court, Guo's loan was used for the production and operation of the family coal mine, and Liu had a number of houses purchased by the familyMr. Liu is a participant and beneficiary of his family's coal mine production and operation. The court ruled that Liu was jointly and severally liable for the repayment of the principal and interest of the loan of 5.18 million yuan received from his personal bank account to the creditor. (Case**: 2020) Zui Gao Fa Min Shen No. 578).
Case 2The individual lends a bank account to a companyDefendant Zhang is an employee of defendant Ruixiang Company, and her husband Liu is a shareholder and legal representative of Ruixiang Company, and Ruixiang Company has borrowed Zhang's bank account to receive loans for a long time. After trial, the people's court held that Zhang was a staff member of Ruixiang Company, and her husband Liu was a shareholder and legal representative of the company, and Zhang's claim that "the principal and interest of the loan and the repayment of the loan were not clear" was unreasonable. Zhang's act of lending the bank account not only violated financial management regulations, but also caused the mixing of Zhang's personal property with the company's property, and he was at fault for Ruixiang Company's failure to repay the plaintiff Kong's loan on time, Judgment: The defendant Zhang is jointly and severally liable for the principal and interest of the loan owed by Ruixiang Company to Kong. (Case**: 2020) Lu 09 Min Zhong No. 1616).
Case 3Circumstances in which a bank account is lent to bear criminal liabilityDue to financial constraints, the defendant Liu wanted to make money through his bank card. He handed over two bank cards under his name to others for receiving and transferring illegal funds, and agreed to charge a benefit fee of 3% of the total transaction turnover. After investigation, Liu's bank account received and transferred a total of more than 810,000 yuan of defrauded funds from 11 victims. Later, Liu was arrested by the public security organs. The people's court held after trial thatDefendant Liu clearly knew that others were using information networks to commit crimes, but still provided bank card payment and settlement, the circumstances were serious, and his conduct constituted the crime of aiding information network criminal activities, sentenced Liu to eight months in prison and fined. (Case**: Shenzhen Intermediate People's Court WeChat***.)
Case 4If you are not responsible for lending a bank accountPlaintiff Zhang was instructed by defendant Hu to remit a loan of 7.5 million yuan to defendant Dongfangxiu Company, and Dongfangxiu Company immediately transferred all the loans to Hu. Because Hu failed to repay the loan on time, Zhang sued Hu and Dongfangxiu Company to the people's court, demanding that Hu and Dongfangxiu bear joint and several liability for repayment of the loan involved in the case. The people's court held after trial thatThe money received by the defendant Dongfangxiu Company has been fully handed over to Hu, and he has not earned remuneration or fees, nor has he earned illegal benefits. He was only instructed to temporarily receive and transfer money, and did not hand over the account and password to the plaintiff Zhang or the defendant Hu for use, and still held control of the account. It was decided that Dongfangxiu Company was not jointly and severally liable for the repayment of the 7.5 million yuan loan involved. (Case**: 2019) Zhe 02 Min Zhong No. 2469).
Legal liabilities for renting or lending bank accounts
Renting or lending bank accounts is an illegal act that violates China's financial management regulations, and the liabilities that the perpetrator may bear include administrative liability, civil liability and criminal liability.
Administrative ResponsibilityArticles 45 and 65 of the Measures for the Administration of RMB Bank Settlement Accounts clearly stipulate that:Depositors are not allowed to lease or lend bank settlement accounts。Article 65 further stipulates that if a non-operating depositor rents out or lends a bank settlement account, he shall be given a warning and fined 1,000 yuanIf an operating depositor rents out or lends a bank settlement account, he shall be given a warning and fined not less than 5,000 yuan but not more than 30,000 yuan. It can be seen that leasing and lending bank accounts is expressly prohibited by China's financial management regulations.
The Anti-Telecom Network Fraud Law of the People's Republic of China, which came into effect on December 1, 2022, has further strengthened the crackdown on leasing and lending bank accounts. The first paragraph of Article 31 of the Law stipulates: "No unit or individual shall illegally buy, sell, lease, or lend ** cards, Internet of Things cards, telecommunication lines, SMS ports, bank accounts, payment accounts, Internet accounts, etc., and shall not provide real-name verification assistance;It is not allowed to impersonate the identity of others or fictitious ** relationship to open the above-mentioned cards, accounts, account numbers, etc. Article 44 provides:"Where the provisions of paragraph 1 of article 31 of this Law are violated, the unlawful gains are confiscated, and the public security organs are to give a fine of between 1 and 10 times the value of the unlawful gains, and where there are no unlawful gains or the unlawful gains are less than 20,000 RMB, a fine of up to 200,000 RMB is to be given;where the circumstances are serious, they are to be detained for up to 15 days
Civil LiabilityFrom the above-mentioned cases, it can be seen that leasing or lending bank accounts may also bear corresponding civil liability. Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of ChinaArticle 65 stipulates: "Where a business introduction letter, a special contract seal, a blank contract with a seal, or a bank account are borrowed, the lending unit and the borrower shall be joint litigants. "In civil trial practice, bank account lending is mostly found in disputes such as private lending and sales contracts, and the common manifestations include lending bank accounts between relatives, partners, and companies and employees. In judicial practice, the people's court will generally consider the following factors to determine whether the bank account lender needs to bear civil liability under certain circumstances: whether the bank account is lent on an occasional or regular basisWho controls the bank account;The relationship between the bank account lender and the borrower;Whether the bank account lender is making a profit;The causal relationship between the lender's act of lending the bank account and the creditor's loss;Whether the lending of a bank account clearly violates laws and regulations or has an illegal purpose (such as lending a bank account to a judgment defaulter to evade compulsory enforcement measures by the people's court).
Of course, the lender of the bank account does not necessarily bear civil liability. For example, in Case 4, if the bank account lender only accepts the borrower's instructions to receive the loan occasionally, but does not hand over the bank account to the borrower for long-term use, and does not make a profit from the bank account, it generally does not bear civil liability.
Criminal liabilityAs can be seen from Case 3, lending a bank account may constitute the crime of aiding information network criminal activities, and thus bear the corresponding criminal liability. Article 287-2 of the Criminal Law of the People's Republic of China stipulates: "Clearly knowing that others are using information networks to commit crimes, providing them with technical support such as Internet access, server hosting, network storage, or communication transmission, or providing assistance such as advertising and promotion, payment and settlement, and the circumstances are serious, shall be sentenced to up to three years imprisonment or short-term detention and/or a fine." Where a unit commits the crime in the preceding paragraph, the unit is to be fined, and the directly responsible managers and other directly responsible personnel are to be punished in accordance with the provisions of the first paragraph. Where conduct in the preceding two paragraphs simultaneously constitutes other crimes, follow the provisions for the heavier punishment at trial and sentencing. "In addition, lending a bank account may also constitute the crime of covering up or concealing the proceeds of crime or the proceeds of crime.
The act of renting or lending bank accounts not only disrupts the normal financial order and endangers the security of transactions, but may also lead to the loss of property of third parties and harm social fairness and justice. All units and individuals should properly use their bank accounts in their own names in accordance with the provisions of the law, and must not rent or lend them to others at will, otherwise they are likely to be punished by law.
Author: Meng Xianglong.
Edit: White.
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