Analysis On Legal Issues In The Disputes Over Identity Theft Of Bank Cards

This paper mainly discusses the trial thoughts of the courts in handling the disputes over identity theft of bank cards and relevant legal issues. This paper is composed of three parts.Part One discusses the controversies of the trial thoughts and the issues behind them. The judge in different areas holds two different trial thoughts in handling the disputes over identity theft of banks cards. One is the common “one lawsuit thought”, namely all that has to do to handle such cases is to bring a “lawsuit of compensation for damage” brought by card holders.The other is the relatively rare “two lawsuits thought”, namely the handling over such cases requires two lawsuits, in which one is to handle whether the refusal by the issuing banks to pay card holders the deposit constitutes breach of contract in the “lawsuit of breach of contract” brought by card holders and the other is to handle whether card holders are liable for the loss caused by identity theft by the third person in the “lawsuit of compensation for damage” brought by the issuing banks. The crux for two different thoughts lies in that different judges hold different opinions on the attribute of the rights to the fund in bank cards and whose property damaged by identity theft of the third person. Through elaborations that the rights entitled to the fund of card holders in bank cards belong to “creditor's right”, what identity theft of the third person damages is the property rights and interests of the issuing banks and the division on the borne laities for the loss of bank cards should take the claim right exercised by the issuing banks as the prerequisite, this paper suggesting choosing “two lawsuits thought” in the disputes over identity theft of bank cards.Part Two elaborates the handling over the “lawsuit of breach of contract”, mainly discussing the cognizance on whether the refusal by the issuing banks to pay card holders the deposit constitutes breach of contract in the “lawsuit of breach of contract” brought by card holders in the “lawsuit of breach of contract” brought by card holders to the issuing banks and other relevant issues in the judicial practice. Whether such acts constitutes breach of contract does not have to review the fault of the issuing banks but focus on the legal effect of payment instruction made by the identity theft to the issuing banks, and the core of the controversiesover the disputes is to recognize whether the payment by the issuing banks to the identity theft produces the effect of debt discharge to the card holders. According to the principles in the civil law, the act of sending instruction by the identity theft belongs to the one under unauthorized agency. The agency sent by the unauthorized agent to the third person will be binding only when the third person is in good faith. The courts shall judge whether the good faith exists and the effect of non-existence of good faith. As for this, the author suggests applying “the discharge system for quasi-possessor of creditor's rights” and agency by estoppel to judge whether the payment by the issuing banks to the identity theft produces the legal effect of debt discharge.Part Three expounds the handling over the “lawsuit of compensation for damage”,mainly discussing whether card holders shall be liable for the loss caused by the identity theft of the third person in the “lawsuit of compensation for damage” brought by the issuing banks to the card holders and other issues in the judicial practice. When judging whether the card holders shall be liable for the loss caused by the identity theft of the third person, the courts needs to review whether the card holders have fault in the occurrence of identity theft of the third person. The cognizance on the fault of card holders involves duty of care or the obligation of security of card holders in such lawsuits. This paper elaborates that the duty of safety is the duty of the card holders to the issuing banks from the perspective of the basic principles of business activities, the intensification of good faith principle, the necessary safeguard for the realization of savings contract purposes and the real demand for social economic development, and elaborates the specific contents in the obligation of security,mainly including the duty of care, the duty of safety, the duty of timely disclosure, and the duty of active assistance.