Research On Civil Liability Of Cloned Bank Card

Along with the rapid accumulation of social material wealth and innovation of electronic payment, the domestic credit card market is developing fast. At the same time, the widespread popularity of bank card has changed the traditional currency of payment, making the financial trading activities conveniently. While risk comes, through by cloning card stolen brush has become a new means of fraud crime, at the same time, clone card disputes emerge in large quantities. However, due to China's current legal provisions on the card is relatively chaos, and lack of imputation principle and the burden of proof system of legislation and judicial interpretation against cloning CARDS nature of legal relationship in civil disputes. As a result, because of the court for cloning card case properties qualitative bias, the judicial referee standard not unified, the situation of the "connection with different sentence" abound in the judicial practice, seriously affected the judicial justice and authority, damage the legitimate rights and interests of the consumer financial and banking institutions, and hindered the healthy and orderly development of bank card consumption market in the financial. In order to better deal with the cloning of bank CARDS disputes better, make the legal relationship that bank CARDS for cloning, imputation principle, the burden of proof the system construction of the legal liability much more perfectly, substantive to balance the interests between banking institutions and consumers, this article will continue to study the theoretical of the cloned card in-depth from the following five parts, and tries to provide some useful Suggestions.The first part, this article through the analysis of three hundred clone card judicial verdict data statistical, reveals the law of judicial application status of bank card, and the deficiency of the legislation and judicial problems, then put forward the current our country in empirical perspective for cloning CARDS disputes, presents framework for the analysis of studies of specific questions below.The second part, the legal relation nature definition is the premise question of legislative, and judicial, analyze the nature of bank card contract, make clear of the deposit currency ownership belongs, explicit the rights and duties in the relationship between different subjects within the cloned card relationship, serve as to improve the legislative qualitative and judicial application.The third part, the imputation principle is the core of the civil liability system. To begin with the general theory of civil liability imputation principle, analysis the different scope of civil liability imputation principle comparatively, and the principle of imputation of liability for breach of contract type on cloned card, then put out its rationality, ultimately determine to adapt to the principle of strict liability during the cloned card case.The fourth part, the burden of proof is the backbone of the civil liability system, the allocation of burden of proof will largely influence the outcome of litigation. This paper, starting from the concept of civil litigation of burden of proof type and comparative analysis of the distribution of burden of proof standard, and make sure that the cloned card case should apply the principle of the inversion of burden of proof.The fifth part, as to the certain of the strict liability principles and the principle of inversion of burden of proof.further on foreign system of limitation of liability and the ascendant risk dispersed mechanism slightly interpretation, to provide a wider view of the development of the legal system on the development of electronic payment system.