Analysis On The Case Of The Illegal Swiping Of Mr. Wu’s Bank Card

In this paper, the analysis on the case of the illegal swiping of Mr. Wu’s bank card shows that there are four dispute focuses. First, strict constraints have been imposed on the terms of deposit contract as regards the application of private key, and whether should the obligation of identifying counterfeit card be used to ascertain the responsibility? Second, there are different understandings of the application of Two Keys principle (debt card and password) in such cases during bank card transaction, and which one of them should assume greater liability? Third, as regards the appropriateness of the defeat in lawsuit resulting from the reversion of the burden of proof concerning the disclosure of password, whether should the card holder be responsible for proving he has not subjective faults or should the bank be required to evidence card holder’s failure to fulfill the obligation of protecting password security? Fourth, concerning principle of imputation, is principle of strict liability or principle of liability for fault more capable of embodying the fairness? Below are the answers to these dispute focuses. First, the validity of the contract shall be confirmed. That is, the both Parties’ appropriate performance of the obligation of protecting bank card security shall be subject to the terms of the business contract. Second, the application of Two Keys principle and the division of liability shall be judged based on collateral obligations according to client’s intentionality or faults. Third, concerning the burden of proof, in consideration of the specific attribute of bank card password and the obligations stipulated in business contract, card holder shall evidence his no-fault liability for the disclosure of password or indicate the bank’s deficiency in safety protection. Fourth, the principle of imputation shall not rely on the principle of strict liability of the liability for the breach of contract mechanically but focus on the principle of liability for fault to work out the faults of clients and the causal relationship between the faults and losses. Meanwhile, the suggestions for improvement shall be presented according to the exceptions on the application of password transaction rules reflected by dispute focuses, the imputation of identifying counterfeit bank card, the performance of security protection obligation, and the legal risks of standard terms and application of contract interpretation rules from the aspects including improving legislative work, accelerating the security construction of bank card and standardizing the rights and obligations of bank card clients.