Judicial freezing of bank cards should follow legal procedures

In recent years, some criminal suspects of telecommunication fraud and domestic and overseas gambling have used bank cards to transfer huge amounts of money and commit crimes, which have attracted great attention from the public security department. According to the "People's Daily" report, since 2020, a total of 155,000 telecommunications and network fraud cases have been cracked across the country, and more than 100 billion yuan of funds involved in the cases have been successfully stopped and frozen. At the same time, a reporter from "Southern Metropolis Daily" learned that Huizhou City, Guangdong Province, successfully destroyed a cross-border online gambling and used USDT (a stable currency that uses the blockchain as the underlying technology and claims to be exchangeable with the US dollar 1:1). Illegal criminal gangs operating illegally. In the same year, the Ministry of Public Security passed the "Decision of the Ministry of Public Security on Amending the Regulations on the Procedures for Handling Criminal Cases by Public Security Organs", in which the amendment to the original 16 articles expanded the scope of the public security organs in crimes committed against or mainly using computer networks. jurisdiction. While illegal and criminal acts have been severely cracked down and the rights and interests of victims have been protected, some well-meaning bank card holders have been restricted or affected from legitimately exercising their property rights. Generally speaking, when some merchants sell goods on the Internet and collect legal currency from the buyer, due to the legality of the source of the legal currency received by the bank card, the bank card is frozen by the public security department. If it reaches more than half a year, it will have an impact on its transactions and even its normal life. It is a pity that the academic circle pays less attention to this issue, and the corresponding research is lacking. This article will analyze the legal problems existing in the judicial freezing of bank cards, and explore the path to solve the problems from the perspective of the rule of law. First, the freezing procedure is simple and the process is not prudent enough. When individual grassroots public security organs handle related cases, all relevant bank cards on the posting path are captured in the system at one time and frozen in batches. In the absence of a specific law enforcement target, with the one-size-fits-all approach of "rather killing one thousand by mistake than letting one go", the impact of freezing bank cards on all cardholders is not considered. Law enforcement is simple and rough, and the authority to freeze bank cards is delegated to a large extent, but the supporting initiation process is not prudent. In addition, the scope of freezing is also unreasonable. In practice, the bank cards that are often frozen are only part of the transaction amount related to the property involved in the case. However, some public security organs directly freeze all the balance of the bank card when law enforcement is not necessary, which affects the normal use of the bank card by the cardholder. suspicion of exercising its property rights. Baixin Bank: It has realized the combination of digital bank cards, digital collections, blockchain and other technologies: Jinse Finance reported that, according to Economic Daily News, Baixin Bank has announced to "welcome the metaverse". Chen Longqiang, chief strategy officer of Baixin Bank, believes that the business model and service form of banks in the future have been quietly changing, especially the way young people interact is already different. Fintech, virtual digital employees and digital assets will become new and important tools for banks' digital transformation. At present, Baixin Bank has realized the combination of digital bank cards, digital collections, blockchain and other technologies, and can provide financial institutions and users with services such as issuance, collection, purchase, storage, transfer and confirmation of digital assets. Digital assets form the only certificate of ownership. [2022/1/13 8:46:24] Second, unfreezing is difficult and relief channels are limited. Judicial freezing of bank cards can be as short as a few days or as long as several years. The time and cost spent by some cardholders to unfreeze their bank cards sometimes even exceeds the amount in the frozen card. For example, it is necessary to go to the local public security department where the bank card is frozen to explain the situation. If the public security agency has "long-arm jurisdiction" across cities or provinces, the process of trying to unfreeze the bank card will be more difficult and costly. Corresponding to this is the lack of citizens' relief channels and means. First of all, after finding out that their bank cards have been frozen, ordinary people need to spend a lot of time and energy to learn about the situation from banks and public security organs, but even so it is difficult to obtain comprehensive and effective information. The case-handling agency usually refuses to inform the details on the grounds that "the case is in the process of investigation and it is inconvenient to disclose information", while the parties' right to know is difficult to be guaranteed. Secondly, due to the above reasons and the limitations of the current law, cardholders lack the corresponding administrative reconsideration procedures or litigation procedures to seek relief from higher authorities or judicial organs. Third, the freezing act initiates the neglect procedure, and the rights and responsibilities are not clear. The institution that initiates the judicial freeze of bank cards has greater discretion, lacks external constraints, and the pre-existing procedures are useless. There are many subjects involved in judicial freezing. The boundaries of power and responsibility of public security organs, procuratorial organs, judicial organs, banks and other financial institutions are not clear, and even overlap and confusion may occur, which complicates the accountability of the freezing procedure and lacks effective binding force. However, in the process of finding relief channels such as thawing, cardholders often can only directly face financial institutions that only perform the obligation of notification, and even the right of defense and objection of the financial institution itself is not stipulated. 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(U.Today) [2020/9/15] my country's "Criminal Procedure Law", "Administrative Procedure Law", "Administrative Punishment Law" and other laws and regulations have given public authorities the power to freeze citizens' property, such as "Criminal Procedure Law" Article 144 stipulates that the public security organs may freeze the property of criminal suspects according to the needs of investigating crimes. At the same time, the "Regulations on the Application of Sealing and Freezing Measures in the Handling of Criminal Cases by Public Security Organs" and "Regulations on Banking Financial Institutions Assisting Public Security Organs of the People's Procuratorate and National Security Organs in Inquiring and Freezing Work" (hereinafter referred to as "Regulations on Assisting Inquiry and Freezing Work in Banking Financial Institutions") Departmental regulations such as these also stipulate in detail the assistance obligations of financial institutions. There are many laws and regulations on the freezing procedure, but in fact the cardholder is the right holder of the frozen property, and the protection provided by the current law is broad and vague. First, there are disputes in determining the legal status of cardholders in the judicial freezing of bank cards. Whether it is regarded as an interested party of the property involved in the case or just an outsider, this is related to the basis of the cardholder's right to claim when seeking judicial relief, whether it is to appeal to the administrative agency, administrative reconsideration or accusation, Or go through the court proceedings. As the "imperial principle" in public law, the principle of proportionality is a principle that must be observed when exercising public power. If the judicial freezing of bank cards violates the principle of necessity in the principle of proportionality, that is, the means used are necessary and the least harmful, then the cardholders whose property rights are actually restricted or violated have also become crimes such as fraud, money laundering or gambling. indirect victims of the activity. The unclear legal status also makes the initiation and termination of the freezing procedure ignore the interests of cardholders, which also increases the difficulty of cardholders' rights protection. Major banks respond to "freezing cards": legal virtual currency bank cards will not be frozen: Recently, there have been rumors circulating on the Internet that Alipay was frozen or prompted to exit the purchase page directly because of the purchase of cryptocurrency. The reporter inquired about the customer service of China Merchants Bank, Bank of China, Agricultural Bank of China, China Construction Bank and Industrial and Commercial Bank of China, and the replies from all banks were roughly the same: "As long as the operation is legal, the channel is legal, the source of virtual currency is legal, and the page supports bank card services, the bank card will not Actively freeze the user’s funds, unless it involves illegal cases such as money laundering and fraud.” At the same time, the reporter logged on to the pages of various virtual currency exchanges, and OTC transactions can use Alipay, WeChat and bank card accounts of major banks for transactions, and in operation When trading, there is no risk warning page to remind. (China Times) [2020/6/14] Second, the rights of bona fide cardholders are not fairly protected. "Criminal Procedure Law", "Criminal Procedure Rules of the People's Procuratorate" and other laws and regulations have repeatedly mentioned that "properties irrelevant to the case shall not be frozen" in the freezing procedures. The case applies to the definition of property involved in the case in Article 2 of the Relevant Provisions on Seizure and Freeze Measures. Whether the funds that have been transferred to the account of the bona fide cardholder by the criminal suspect in the normal transaction with the cardholder can still be regarded as the property involved in the case? Can the "proceeds and fruits of crime" in item 1 be regarded as "other property that can prove whether a crime has occurred and the severity of the crime" in item 3? Property unrelated to the case? In practice, for the purpose of cracking down on crimes and helping victims stop losses in a timely manner, the public security organs can freeze the bank card as long as part of the transaction amount in the bank card involves stolen money. However, the transactions between bona fide cardholders and criminal suspects are not in the same legal relationship as fraud, money laundering and other criminal acts. Although it helps to make up for the victim's loss, it is unfair to cardholders who trade in good faith. Huobi Wallet allows users to buy cryptocurrencies with bank cards through Simplex: Huobi Wallet now allows users to buy cryptocurrencies with credit and debit cards through payment processor Simplex. (Cointelegraph) [2020/5/20] Third, the right to know is one of the manifestations of the property rights enjoyed by bank card holders, and the protection of corresponding rights is insufficient. Protecting citizens’ right to know is a basic requirement of the due process principle. For example, Article 44 of the Administrative Punishment Law stipulates that the administrative organ shall inform the parties of the content-zce of the proposed administrative penalty and the facts, reasons, and basis. , defense and other rights. However, in the judicial freezing of bank cards, it is often difficult to guarantee the cardholder's right to know because of factors such as preventing funds from being transferred and the case is being investigated. Article 25 of the "Regulations on the Application of Sealing and Freezing Measures in the Handling of Criminal Cases by Public Security Organs" stipulates that after the relevant units have completed the freezing procedures, they can inform the parties when they inquire. After the bank assists the public authority to complete the freezing procedures, it shall inform the parties when they inquire. Regardless of whether the above provisions are "may" or "should", the right to know is only exercised after the freezing procedures are completed, and the parties need to take the initiative to inquire with the financial institution. The law does not specify in detail what circumstances the public security agency "may" inform or not inform. Only Article 103 of the Code of Civil Procedure stipulates that the frozen person should be notified after the freezing of property. In reality, many cardholders know that their bank cards have been frozen by the judiciary only when they are hindered from exercising their property rights, and the scope of being informed is also very limited for the purpose of keeping secrets by the public security agencies. It can be seen that the protection of citizens' property rights is insufficient in the current laws and regulations. Fourth, Article 56 of the "Administrative Litigation Law" stipulates that the execution of administrative acts shall not be suspended during the litigation period, that is, the administrative counterpart must first obey the actions of the executive organ before claiming rights. Similarly, the role of financial institutions in the process of judicial freezing of bank cards is similar to that of auxiliary agencies. When they disagree with public authorities, they need to go through the freezing process first, and then submit it to the legal department of the banking regulatory agency for coordination. Cardholders and assisting agencies cannot exercise their right of defense during the entire freezing process. The current relevant laws and regulations mainly consider the convenience and efficiency of the judiciary in implementing the freezing procedure, but they do not fully respect the rights and obligations of cardholders and financial institutions as participants. To a certain extent, this reflects that financial institutions, as auxiliary organs, are actually considered to have a status similar to that of state agencies, but this status is only reflected in assuming obligations, and there is no clear conclusion on whether they even have rights such as the right to object. In the process, it is inevitable that the willful actions of individual public security organs will eventually infringe upon the rights of bona fide cardholders. Major Indian bank bans customers from buying or trading cryptocurrencies with its bank cards: HDFC, a large private lender in India, has banned customers from buying or trading cryptocurrencies with all of its cards, including credit, debit and prepaid cards. There are growing global concerns about such financial instruments, the bank said in a client bulletin. [2018/3/14]Fifth, the provisions of my country's current laws on the power of investigation are not limited to public security organs, but to a certain extent, other administrative organs, procuratorial organs, judicial organs, and supervisory organs have the investigative power and corresponding freezing of similar cases. It focuses on the punishment power of the relevant departments when they fail to perform the duty of assistance, but the provisions on the review and supervision of the improper exercise of power infringing on the rights and interests of the parties are relatively broad. Article 33 of the "Regulations on the Application of Sealing and Freezing Measures in the Handling of Criminal Cases by Public Security Organs" stipulates that there are many accounts involved in the case, and the places where the accounts are opened belong to different provinces, autonomous regions, and municipalities directly under the central government. The person in charge of the public security organ will review and report to the Ministry of Public Security for approval in accordance with the prescribed procedures." However, how to identify the "person in charge of the public security organ", whether the review standard is formal review or substantive review, and whether the procedures to be followed are clearly stipulated in corresponding laws and regulations, these issues are still unclear. In practice, it may depend on the discretion of the public security organs, which reflects the lack of an effective judicial review mechanism in the process of judicial freezing of bank cards. The above-mentioned problems in the judicial freezing of bank cards are rooted in the possibility of infringing on the exercise of citizens’ property rights in the process of exercising public power, which in turn affects citizens’ production and life. In the course of the development of democracy and the rule of law, property rights have always been an important content-zce of human rights protection, and are generally regulated at the constitutional level. Our country stipulates in Article 13 of the "Constitution": "Citizens' legal private property is inviolable. The state protects citizens' private property rights in accordance with the law..." Those who have permanent property have perseverance, and the protection of citizens' property rights helps encourage people. Carry out labor and investment in the process of market economy development to create more social wealth. Correspondingly, it is the public power supported by the coercive power of the state. In the construction of a country ruled by law, in order to realize the state's power of punishment, it is legitimate for the state prosecution agency to restrict or interfere with the property rights of the prosecuted. However, there is a boundary between the realization of state functions and the protection of citizens' property rights. When the judicial freezing of bank cards has an adverse effect on the exercise of property rights by outsiders, the exercise of public power will exceed reasonable limits. Therefore, it is necessary to improve the problems in the bank card judicial freezing system from the perspective of the rule of law. First, promote the application of the principle of proportionality.

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