非法经营罪中支付结算业务的界定

Definition of Payment and Settlement Business in the Crime of Illegal Business Operation

司法实务中对支付结算型非法经营罪存在泛化适用的倾向,根本原因是由于对“非法从事资金结算业务”做宽泛解读所致。只有作为提供支付结算服务的中介机构,其从事的业务才可能成立非法经营罪中的支付结算业务,这符合支付结算业务作为特许业务的要求,并有《商业银行法》等前置性规定作为规范依据。据此,现行司法解释中有关支付结算型非法经营罪的规定存在正当性方面的疑问,以是否借助虚假交易等形式套现来理解支付结算型的非法经营罪,是对该罪构成要件与不法本质的曲解。无论是通过信用卡套现与“养卡”的行为,还是为票据套现提供中介服务的行为,抑或利用单位账户套现或转入私人账户的行为,都难以构成支付结算型非法经营罪;但相关行为可能成立骗取贷款罪或洗钱罪等罪名,在无法成立其他犯罪的情况下,对相应行为应做无罪处理。

In the judicial practice of China there has been a tendency to apply the wrongdoing type of payment and settlement services broadly under the crime of llegal business operation.This over-broad application arises from an expansive interpretation of"llegally engaging in fund settlement business".Only when an intermediary institution provides payment and settlement services,its activities can be considered as constituting payment and settlement services in the crime of illegal business operation.This aligns with the requirement of payment and settlement services as a franchised business,and is grounded in the related provisions of the Commercial Bank Law.Given this context,there are doubts about the legitimacy of current judicial interpretation regarding the type of payment and settlement service under the crime of illegal business operation.Understanding this type of crime based on whether cash is obtained through false transactions distorts the constituent elements and wrongdoing's nature of the crime of illegal business operation.Acts such as cashing out through credit cards and"keeping cards",providing intermediary services for bill cashing,cashing out through corporations'accounts or transfers to private accounts,are challenging to categorize as the type of payment and settlement services under the crime of illegal business operation.Instead,these acts might constitute the crimes like fraudulent loan,money laundering and others.If these crimes cannot be established,the corresponding conduct should be treated as non-criminal.