Research On The Burden Of Loss On Unauthorized Small Electronic Payment

Increasingly frequent small electronic payment brings convenience and benefits to people’s living and consumption, but there have been many disputes due to security and fraud issues, and increasingly showed an increasing trend, especially for those small electronic payments without authorization which are difficult to identify the actual initiator and reasons.China has no clear specific laws about this, over the court in different areas have various ideas, rules of evidence applicable, different law applies and different verdict. There are different theories of banking, financial consumers, regulatory authorities, public opinion and other parties. I intend to conduct in-depth analysis of such issues.The electronic payment means the the payer give payment instructions through electronic terminals to banks, a third party electronic payment services provider, in order to complete currency of payment and funds transfer. Small electronic payment is the payment for the purpose of daily life and consumption. The unauthorized electronic payment is the persons who have authorized agent permission and use illegal means to steal the initiate permissions of electronic payment instruction to implemented electronic payment behavior.This paper, from the perspective of performance of obligation to analysis legal relations of small electronic payment, the basic rights and obligations of the parties.From my opinion, electronic payment is behavior of based on contract signed by bank and customer before, according to the customer instruction to fulfill its obligations which are agreed before, this behavior is debt to perform.Based on the definition of the definition of electronic payment and analysis in the first chapter in this paper, the electronic in the analysis of the characteristics of the performance of the debt in the second chapter, I come up with the ideas in chapter3:based on the core of electronic payment is to perform behavior and subjective recognition be materialized and information, based on the the necessary software and hardware of electronic payment are provided by the bank, the bank should take more responsibility of the obligations of identification the creditor’s rights credentials and the creditors, the bank has obligations and has the ability to undertake to ensure and improve the safety technical standard of the responsibility and obligation according to the changing security environment prompts the customer to prevent fraud and leak risk. At the same time to insure the bank’s right to fulfill debt must have the customer to cooperate.In reference to foreign laws and regulations and experience about unauthorized small electronic payment in the fourth chapter, and combining the actual conditions of our country, I pointed out in chapter5, legal adjustment direction of unauthorized small electronic payment should be:if there is any unauthorized small electronic payment, in difficult to find out the actual launch of electronic payment and reason, should be the bank to take the main loss, customers,only in a certain limit, to bear part of the loss. Concrete measures and ideas are, first, through the demonstration of industry guidance and even mandatory administrative rules, promote the bank and the customer to establish contract settlement mechanism on unauthorized trading loss assume and the bank undertakes the main losses, customers in must be within the quota bear a loss; second, the judicial trial should be unified thinking and applicable laws, it is not easily through the allocation of the burden of proof is to a party to determine which one shall bear the responsibility, it’s possible to used the current basic principles of law and legal theory to analysis and judgment, third,it is better to bulid the electronic payment security supervision and dispute processing mechanism by the lead of related financial supervision department, and coordinate and deal with dispute in electronic payment service providers and customers; fourth, through the mandatory standard to regularize standard electronic payment party behavior custom, create good security environment; Fifth, to strengthen the field of electronic payment illegal crime crackdown.