Have you ever heard of bad checks? A bad check refers to a check that the drawer's actual deposit at the payer is not enough to pay the bill amount when the cheque holder demands payment. Let me give you a detailed introduction to the legal knowledge of bad checks.

People's Republic of China (PRC) Negotiable Instruments Law stipulates that the amount of check issued by the drawer of a check shall not exceed the actual deposit amount at the payer's place, that is, a blank check shall not be issued, which requires the drawer to ensure that there are enough funds in the deposit account at the payer's place to pay the check amount from the date of issue to the completion of payment.

Whoever issues a bad check to defraud property shall be investigated for criminal responsibility according to law. If the act of issuing a bad check to defraud property is minor and does not constitute a crime, the negotiable instruments law stipulates that administrative punishment shall be given in accordance with the relevant provisions of the state.

Punishment for bad checks

According to the regulations of the central bank, after the cheque is used in China, the cheque voucher issued by the drawer remains unchanged, and the time limit for presenting payment of the cheque is still 10 day; The money for checks used in different places can be received within 2 to 3 hours at the earliest, usually within 3 working days from the date when the bank accepts the check.

In order to prevent payment risks, the maximum amount of a single check used in different places is 500,000 yuan. For the check business, the bank's charges to customers are still unchanged according to the current standards for the time being.

According to the regulations, it is forbidden to issue empty checks. The drawer issues a check, and if the account balance is insufficient to pay the amount of the check issued, the check is a bad check. In addition, checks that are inconsistent with the signature of the reserved bank are also regarded as empty checks. At the same time, writing bad checks will be punished according to law.

The purpose of issuing a bad check or a check that is inconsistent with its reserved signature is not to defraud property, and the drawer shall be fined 5% of the face value of the check but not less than 1000 yuan, and the holder shall have the right to claim compensation for the loss of 2% of the face value of the check; The drawer will also be investigated for criminal responsibility for the purpose of defrauding property.

The influence of bad check on the drawer

1. Bill liability

The Bill Law is a special law of civil law, and the bill liability is also a kind of civil liability in essence. However, due to the particularity of the Bill Law, the bill liability that the drawer should bear is listed separately. The drawer shall bear the following bill responsibilities for guaranteeing payment.

According to Articles 26, 70, 7 1 94 of People's Republic of China (PRC)'s Negotiable Instruments Law and Article 22 of the Supreme People's Court's Provisions on Several Issues Concerning the Trial of Negotiable Instruments Cases, the drawer of a cheque shall guarantee payment according to the literal meaning of the cheque. Therefore, when the payer refuses to pay, the drawer shall bear the repayment responsibility to the payee and its subsequent parties. The liability for this guaranteed payment is not limited to the face value. When exercising the right of recourse against the drawer, the holder may demand the payment of interest from the date of presentment for payment. The interest is calculated according to the loan interest rate of enterprise working capital stipulated by the People's Bank of China in the same period.

2. Civil liability

1 civil filling responsibility

Article 107 of the People's Republic of China (PRC) Negotiable Instruments Law stipulates: "Whoever violates the provisions of this law and causes losses to others in addition to being liable for compensation in accordance with the provisions of this law shall bear civil liability according to law."

The act of writing a blank check clearly violates the provisions of China's negotiable instrument law. Therefore, in addition to paying off the amount and expenses stipulated in Article 70 and Article 7 1 of the Negotiable Instruments Law, the person who issues a bad check shall also bear civil liability for compensation according to law.

The drawer shall compensate the holder for 2% of the cheque amount.

Article 125 of the Payment and Settlement Measures stipulates that if the drawer issues a blank check, a check whose signature is inconsistent with that of the reserved bank, or a check whose payment password is wrong, the bank shall return the check and impose a fine of 5% but not less than 1000 yuan according to the face value; The holder has the right to claim 2% of the cheque amount from the drawer. If the cheque is issued repeatedly, the bank shall stop issuing the cheque. It can be seen from this article that the drawer of a bad check should not only bear the bill liability, but also pay compensation to the holder.

The nature of this compensation should be considered as liquidated damages and the civil liability of the drawer for breach of contract. Because the check is mainly to pay for securities, and the drawer writes a blank check, it violates the contract, so he has to bear the liability for breach of contract. However, there may not be a direct contractual relationship between the holder and the drawer, but through recourse at different levels until the bill is transferred to the person who obtains the bill from the drawer. There is a contractual relationship between the person and the drawer, and it is also the ultimate responsibility bearer.

The punishment should be punitive. Because according to the provisions of Articles 70, 7 1 and 94 of the Negotiable Instruments Law, the responsibilities undertaken by the drawer have completely compensated the losses of the holder, so the agreement on liquidated damages has the nature of punishment.

3. Administrative responsibility

1 fine

A fine of 5% but not less than 1 000 yuan shall be imposed on the drawer of a bad check. Article 104 of People's Republic of China (PRC)'s Negotiable Instruments Law stipulates: "If one of the acts listed in the preceding article is minor and does not constitute a crime, it shall be given administrative punishment in accordance with the relevant provisions of the state." Item 3 of the crime of bill fraud listed in the preceding article, that is, Article 103 stipulates that "issuing a blank check or deliberately issuing a check that is inconsistent with its reserved signature pattern or seal to defraud property".

The act of writing a bad check here is regarded as "bill fraud". Does it need the drawer's subjective intention to write a bad check?

Some scholars believe that since it is a kind of "bill fraud", it requires the actor to be intentional, that is, the actor must issue a bad check to defraud public and private property while knowing that the payer has no money. The act of issuing a bad check shall be given administrative punishment in accordance with the Measures for Payment and Settlement of the People's Bank of China.

Article 125 of the Measures for Payment and Settlement stipulates that if the drawer issues a blank check, a check with a signature inconsistent with that of the reserved bank, or a check with an incorrect payment password is used in this area, the bank shall return the check and impose a fine of 5% but not less than 1000 yuan according to the face value; ..., banks should stop issuing duplicate checks.

The punishment procedure is in accordance with Article 239 of the Measures for Payment and Settlement: the punishment of administrative responsibilities of units and individuals shall be entrusted by the People's Bank of China to commercial banks. This is also the implementation of the "Payment and Settlement Measures" initially tried in China, and fines are used as the income of commercial banks.

Because in practice, financial institutions handling cheque deposit business, after discovering that the drawer of a customer has written a blank cheque, traditionally try to inform the customer to make up the balance of accounts payable first, and then close the account on the same day. If the customer fails to make up the difference in time, the commercial bank will impose a fine on the customer according to the above standards, and directly deduct the money from the customer's deposit account according to the provisions of Part VIII quater of the Accounting Treatment Measures for Payment and Settlement issued by the People's Bank of China, and the fine income will be included in its non-operating income account.