The Study Of Loss Allocating Rules For Unauthorized Payment In Bank Card Transaction

The unauthorized payment in bank card transaction occurs frequently with losses.Relevant legislation about loss allocation exists in a number of laws.They manifests as highly principled and scattered provisions.There are not only effect conflicts among those provisions,but also vague regulations on some critical matters.These conflict or indistinct rules are bad for trials.They led judgers have different opinions on judgment thought,the application of law and the final decision.No matter which party is decided to bear the loss,there are always some problems about law lacking or logic flaw.Moreover,the decision to let the card holders to bear the loss often cause criticism in society because card holders are weaker than bank.Some scholars think we should learn from some developed banking countries of common law system and use consumer financial protections theory to provide card holders tilt protection.But they didn't fully demonstrated the theory foundation and feasibility when talking about transplantation of law.On the one hand,they didn't think about whether it is suitable to protect card holders as consumers in our legal systems,nor did they demonstrate the rationality and feasibility of the inclinable policy and do some localization transformation.To study the allocation of loss in unauthorized payment,the value is to find out the principle and rules.On the one hand,the research is good for fairness and justice through allocating the loss between card holders and banks.On the other hand,it can avoid the situation that vague regulations suppress the use of bank card,which is harmful to the payment system in our country.This article consists of three parts.The first part analyzes the nature,dispute and legal cause of unauthorized payment in bank card transaction in theoretical,judiciary and legislative point.Premised on analyzing the legal relationship of bank card,this article tries to determine the behavior nature with unauthorized agency theory and quasi-tenure theory.Moreover,it claims the uncertainty of rights and obligations between the parties.It concludes the subject uncertainty to bear the risk of code use,the unknown nature of the obligations to protect the card and code and skepticism to the application of the principle to protect the transaction security.In Current judicial practice,the trial thought on this issue also has confusion and difference.Whether the use of code could be the authorized basis,the vague of burden of producing evidence distribution and the comparison of the two parties' fault,the judgers have different opinion on this problem.No one can give us a convincing explanation.The disagreement and confusion on judgment stem from the deficiency and conflict in legislation.There is no consistent regulation on this issue.The relevant provisions always have conflicts.For example,the effect of the code use is different in laws and regulation made by People's Bank of China.Since the rights and obligations of the two parties are vague and there is so much confusion and conflict in legislation and trial,to study the allocation of loss in unauthorized payment of card transaction has importance and necessity.After analyzing the nature of this issue and confirming the legal cause of controversy,the second part decides to talk about the theory and principle of loss allocation.Firstly,this article learns from the rules of the common law systems.These rules from different countries have something in common,which is that they all provide inclinable protection for the card holders.Then the article investigates the rationality and necessity to protect the card holders in our country.There are three reasons those are the system motivation result,loss spreading and financial consumer protection.In contrast,the current allocating rules lacks in improving diligence of card holders,technical progress of bank cards and the advancement ofmodern payment system.At last,the article tries to conclude three principles those are the loss reduction principle,the loss spreading principle and interests balance principle.The third part tends to make the rules of loss allocating.These rules involved in the rights and obligations of two parties,the criterion of authority and other concrete rules.In the relation between banks and card holders,the former hassecurity obligation and careful review obligation while the latter has the properly keep obligation and informed obligation.The criterion of authority should be more reasonable and the concrete rules conclude the limit of liability clause,exemptions,the burden of producing evidence distribution and the doctrine of liability fixation.