What is the legal responsibility for writing a bad check? Let's take a look together. After reading the following content, it will definitely help you.
First, the legal responsibility of writing a bad check
The law of negotiable instruments stipulates that the amount of cheque issued by the drawer shall not exceed the actual deposit amount at the payer's place, that is, a blank cheque 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 cheque amount from the date of issue to the end 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.
The legal liability for issuing a bad check is as follows:
(a) the criminal responsibility of issuing a bad check
Article 102 of People's Republic of China (PRC)'s Negotiable Instruments Law stipulates that "anyone who commits any of the following acts of fraudulent instruments shall be investigated for criminal responsibility according to law-issuing a blank cheque or deliberately issuing a cheque inconsistent with its reserved seal to defraud property, …". This is a question about the criminal responsibility of bad checks in China's Negotiable Instruments Law. Article 194 of the Criminal Law of People's Republic of China (PRC) also makes clear and specific provisions on the crime of financial bill fraud caused by issuing blank checks and its criminal punishment.
For those who write empty checks to defraud public or private property, China's criminal law stipulates that they can be sentenced to fixed-term imprisonment of not more than five years or criminal detention and fined not less than 20,000 yuan but not more than 200,000 yuan; If the amount is huge or there are other serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than five years and fined not less than 50,000 yuan but not more than 500,000 yuan; If the amount is especially huge or there are other particularly serious circumstances, he shall be sentenced to fixed-term imprisonment of 10 or life imprisonment, and shall also be fined not less than 50,000 yuan but not more than 500,000 yuan, or his property shall be confiscated.
(2) the civil liability for issuing bad checks.
The act of writing blank checks is explicitly prohibited by China's negotiable instrument law. Therefore, in addition to asking the drawer to pay the amount and expenses stipulated in Articles 70 and 71 of the People's Republic of China (PRC) Negotiable Instruments Law, the holder can also ask the drawer to bear the liability for compensation for the losses caused by issuing blank checks. In addition, Article 31 of the Measures for the Implementation of Bill Management also gives the holder the right to demand compensation of 2% of the check amount from the drawer for the act of issuing a blank check.
(three) the administrative responsibility of issuing bad checks
1, very good
Article 31 of China's "Measures for the Implementation of Bill Management" stipulates: "The purpose of issuing blank checks or checks inconsistent with their reserved signatures is not to defraud money. The People's Bank of China will impose a fine of 5% of the face value but not less than 1000 yuan, and the holder has the right to ask the drawer to pay compensation of 2% of the check amount." According to the above regulations, if an enterprise issues a bad check, the People's Bank of China may impose a fine of 5% of the amount of the bad check but not less than 1 000 yuan.
2. Qualification penalty
According to Article 125 of the Measures for the Settlement of Bills: "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 in the area where the payment password is used, 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 demand the drawer to compensate for 2% of the check amount. For repeated issuance, the bank should stop issuing checks. " In addition to imposing fines on enterprises that write bad checks, banks can also disqualify enterprises that write bad checks many times.
Second, the operation process of administrative punishment for bad checks
1, investigation and evidence collection
(1) If the bank finds that the drawer has issued a bad check, it shall immediately fill in a bad check report form (hereinafter referred to as the report form), copy the check and other materials sufficient to prove that the drawer has issued a bad check in violation of regulations, sign it and make it an annex to the report form, and submit it to the payment and settlement management department of the local branch of the People's Bank of China (hereinafter referred to as the People's Bank) at the latest the next day (holidays postponed).
(2) The People's Bank of China shall make verification within 3 working days from the date of receiving the report, and make a decision on whether to impose administrative punishment.
(1). If the facts are clear and the evidence is conclusive, administrative punishment shall be imposed. The decision on administrative punishment shall be approved by the person in charge of the payment and settlement management department authorized by the competent president. After making a decision on administrative punishment, the People's Bank of China shall make a Notice of Opinions on Administrative Punishment (hereinafter referred to as the Notice) and notify the reporting bank of the proposed punishment decision.
(2) If the fact of issuing a bad check is unclear and the evidence is insufficient, put forward rectification opinions and return the materials to the reporting bank.
Step 2 notify
The bank shall fill in the drawer's name, illegal facts and other related contents in the notice within 5 working days from the date of receiving the proposed punishment decision and notice made by the People's Bank of China, and serve it on the drawer. At the latest, report to the People's Bank of China on the next day (holidays postponed).
Step 3 decide
(1) If the People's Bank of China fails to receive the written materials of the drawer's statement or defense within five working days from the date of service of the notice, or refuses to accept the statement or defense put forward by the parties after examination, it shall make the Decision of the People's Bank of China on Administrative Punishment (hereinafter referred to as the Decision) and notify the bank.
The People's Bank of China shall organize a hearing for the major administrative penalty decision to be made if the drawer requests a hearing within 3 days after receiving the notice.
(2) The bank shall fill in the drawer's name, illegal facts, the amount of fine and other contents in the decision within 5 working days from the date of receiving the decision, and serve it on the drawer, and fill in the delivery receipt. At the latest, report to the People's Bank of China on the next day (holidays postponed).
4. Payment of fines
The fine collection agency shall collect the fine according to the fine amount determined in the decision. For the drawer who fails to pay the fine within the time limit, the People's Bank of China may impose a fine of 3% of the fine on a daily basis, or fill in the "Application for Compulsory Enforcement by the People's Bank of China" and apply to the people's court for enforcement.
The fine collection agency shall turn over the fine collected in full to the central treasury on the spot, and the budget subject shall be "4350 other confiscated income".
The collection agency shall, within 3 days after the end of each quarter, summarize the fines collected in the last quarter and paid into the central treasury, fill in the Summary Table of Penalty Income from Bad Cheques, and distribute them to the location of the Office of the Financial Ombudsman of the Ministry of Finance and the branch of the People's Bank of China, which made the decision on administrative punishment.
The branches of the People's Bank of China shall reconcile the collection of fine income with the entrusted collection agency on a monthly basis. If the fine is not paid by the designated collection agency, the units and individuals who have been punished shall be instructed to pay and be fined.
5. Payment of handling fee
(a) the collection fee. The financial department pays the collection fee law to the collection agency that collects the fine of bad check. The Financial Commissioner's Office shall, within 20 working days after the end of each year, pay 0.5% of the total amount of fines for bad checks collected by financial institutions in the previous year to the central treasury, issue an income refund form, and return it to the collection agency on the spot.
(2) assist in the execution of handling fees. The fee for assisting in execution refers to the fee paid by the drawer's bank to find and report the illegal acts of bad checks and assist the People's Bank of China in handling administrative penalties. The branch of the People's Bank of China shall pay the assistance execution fee to the bank that reported the act of empty cheque at the rate of 10% of each fine, and the maximum assistance execution fee shall not exceed 65,438+10,000 yuan. The branches of the People's Bank of China shall, within 20 working days after the end of each year, pay the assistance execution fee payable in the previous year to the reporting bank.
6. Data management
The information about the punishment of bad checks should be specially bound according to the requirements of accounting file management and kept for five years.
All branches of the People's Bank of China, the business management department, and the city center branch of the provincial capital shall formulate the punishment operation procedures in their respective jurisdictions with reference to the Operating Procedures for Administrative Punishment of Blank Cheques.
The above is about the legal responsibility of writing bad checks. It is stipulated that the People's Bank of China will impose a fine of 5% of the face value but not less than 1000 yuan if it issues a bad check or a check that is inconsistent with its reserved signature, not for the purpose of defrauding property.