Empirical Research Of Identity Theft On Bank Card

In Internet era,the physical media function of bank card is weakened and on-line payment prevails.The changes of payment modes have brought both convenience and risks;a good deal of bank card fraud cases break out,which is caused by various reasons;thereinto,personal information disclosure and bank card password disclosure are the major causes.Fraud takes place frequently and the bearing of civil liabilities between the cardholder,namely the direct victim and the issuing bank has become a focus issue that is difficult to keep balance in judicial adjudication.In judicial process,there are large controversies on the fault liability confirmation and assumption of responsibility of giving evidence between appellant and accused party and the security obligation of bank is amplified infinitely in the contract.During process of hearing,all the courts have no unified judicial judgment rules on bearing of civil liabilities between all parties after bank card fraud,leading to the outstanding phenomenon of “different verdicts in the same kind case”.Through participating in hearing process of bank card fraud cases,the author finds that the responsibility proportions of banks in the verdicts of same kind cases are different and the banks as one of the victims are at a advantageous legal status.In this thesis,the domestic effective judgments over the years(the information data of case summaries in Judicial Opinions of China as of December 31,2016)are collected,three typical cases with different responsibility proportions are enumerated,the bank card fraud categories and features are studied,the tendentious opinions during judicial processes and the legal relations and assumption of civil responsibilities between all parties are collected and the tendentious opinions and focus issues of judicial adjudication rules on bearing of civil liabilities and allocation of the burden of proofs between all parties during judicial processes are mainly discussed.From the opposite of real trial and universal tendency,the fairness theory of bearing of civil liabilities for bank card fraud,the balance between contractual collateral obligation theory and bank security obligation and the improvement on application of judge’s discretionary power on bank card fraud are explored through the empirical study on the cases over the years.Through the empirical study,it is found that the basic reason for “different verdicts in the same kind case” of bank card fraud is that it is difficult for the both parties to provide proofs for bank card fraud details and it is difficult to identify the direct source for the password disclosure of the bank card that is used unauthorizedly or the respective sources for the bank card password disclosure when it is used unauthorizedly through the cooperation ways;hence,the judge can not distinguish the responsible party and the responsibility proportion based on the existing evidences during the process of hearing.In the cases where the both parties fail to prove that the bank card password disclosure is caused by the fault of opposite side,the first choice for judges in real cases is that the responsibility undertaker should be determined according to judge’s discretionary power on the basis of quoting abilities and abilities of undertaking risks.In the cases that application scope and standard of judge’s discretionary power is not limited by established judicial rules,the subjective factors of judges and objective factors caused by social opinions may become the important factors dominating the judicial decisions;in particular,China is vast in territory with a large gap in economic development,which is a prominent objective influence.Hence,in the recent bank card fraud cases,banks have gradually become the vulnerable group due to the wide recognition that banks have preferable abilities to bear risks and provide proofs with respect to natural person and banks should assume increasingly heavier judicial proceedings and civil liabilities.Based on the equity principle,it is thought that the issuing bank in bank card fraud is one of the victims,the civil dispute of bank card between cardholder and issuing bank should be heard on the premise that the damages of both parties should be balanced,the relevant judicial interpretations or guiding cases should be introduced,the judicial adjudication rules of bank card fraud should be unified and the procedural rights and duties,allocation of the burden of proofs,bearing of civil liabilities and judge’s discretionary power between all parties in the bank card fraud cases should be determined so as to provide the theoretical references for judicial practice in China.