A Study On Banks' Liability In The Transactions Via Forged Debit Cards

With the popularity of debit cards, the case of stealing others' money within a forged debit card occur frequently, which cause the number of civil dispute of cardholders(depositors) sue the issuing bank show a trend of rising year by year. Due to the lack of clear regulation for this cases in our legal system and the basis and scope of responsibility for issuing bank is controversial among judges, prominent difference in the same situation offen appear. Accordingly, the study in the theoretical circle also does not form a system, the scholars have a wide controversy on the key problems of the issuing banks' contractual obligations, the cardholder's fault and the distribution of burden of proof,it is necessary to conduct further research. This article use the analysis tool of traditional "theory on the relationships of civil law", start from the current judicial status of transaction cases of forged debit card, through the arrangement of relationships of law of transaction cases of forged debit card,grasp the nature of the responsibility of the issuing bank, component elements of liability and catalog of exceptions, then combine the specific conditions of proof of two sides, define the issuing bank's ultimate responsibility boundary. At the same time, this article focus on the trouble of the judicial practice and legal level, put forward feasible countermeasures and suggestions about responsibility mechanism of transaction cases of forged debit card in the future, and hope to solve this dispute.This paper is divided into four parts except the introduction and conclusion.The first part is the arrangement on current judicial status in the transaction cases of forged debit card.At present, the understanding of the issuing bank responsibility boundary in the court is not uniform, some order banks to bear all losses, while others dismiss the cardholder's claims, and more of the courts based on a fair consideration order to share the loss by the issuing bank and the cardholder. Investigate its reason,One is the complicated legal relation in this case, and subject is controversial, the second is that the case facts is difficult to find out, the distribution of burden of proof directly influence the final results of the referee,the third is that judges have controversy on the principles of imputation,which determine the difference of border of responsibility.The second part is the release of civil legal relationship in the transaction cases of forged debit card,mainly to answer question of the ownership of the deposit, the issuing banks' contract obligation and other relationship with the issuing bank, and also to lay a theoretical basis for determining banks' liability. First of all, the relationship between the issuing bank and the cardholder is a kind of creditor's rights, the ownership of the deposit belongs to the bank.Second, the issuing bank assume main payment obligation and notification, assistance,confidentiality,protection subordinated obligation in the debit card contract, but it must be clear that the issuing banks' prudent examination is an important guarantee to perform the payment obligation rather than one of subordinated obligation. Finally, in the interchange and POS transaction mode, the relationship among the issuing bank,the actual transaction bankingand specially engaged is the principal-agent.The effect of acts of agency directly attributable to the issuing bank,the issuing bank is the subject in the transaction cases of forged debit card.The third part is the definition of the issuing banks' responsibility in the transaction cases of forged debit card based on the abve, which is the focus of this article. The author thought that, in such cases, the banks' responsibility is a kind of liability for breach of contract,which exist no concurrence with tort liability, so that it should apply "contract law" general principles of imputation---principle of strict liability, regardless of the issuing bank's subjective fault. We shall, in accordance with the components of the liability for breach of contract and catalog of exceptions,ant the combining the distribution of burden of proof, reasonably define the scope of the issuing banks' responsibility. In addition, in catalog of exception, the cardholder's fault is not a "both sides" default behavior in "contract law", the act of judge on this basis in the judicial practice need to be corrected.The fourth part is suggestions of legal mechanism in the transaction cases of forged debit card. There is a lack of a clear rules in the current law system for transaction cases of forged debit card, the departmental regulations' level is too low and the content is not perfect. To this, we should, based on the advanced experience of other countries, hold the idea of protecting the cardholders' interest and efficiency to make up for the defect of current legal regulation for transaction cases of forged debit card from the legislative level and judicial level, and then provide powerful guidance for the future judicial judgment, properly handle this kind of dispute.