The Research On The Civil Liability Of Clone Card Withdrawal Cases

This paper takes the typical cases of clone card disputes and identification of the civil liability of clone card disputes as center, from two angles of contract law and tort law, analyzes the main point of controversy of cases, hopes to provide some considerations for civil trial practice. In this paper, the first part introduces the basic situation of the typical case. The second part summarizes the focuses of disputes of the case. The focus of dispute mainly includes three aspects: the legal nature of clone card disputes, the bank’s obligations, and the legal responsibility of the subject. The third part analyses the focuses of disputes in this case. The fourth gives the handling suggestion for this case. The fifth part is the thinking of similar cases.From the perspective of contract law, there is a deposit contract relationship between customers and banks. The nature of the deposit contract is borrowing rather than keeping properties. Banks mainly bear the payment obligation and corresponding collateral obligation in this kinds of disputes. In the multi-bank transactions, this paper analyzes the legal relationship between head office and bank branches, card issuers and trading banks. Based on the legal rules, in the case of disputes arising between customers and bank branches, the branch office should be of the main legal responsibility for the subject. If the branches were unable to perform the obligation of compensation cases, the superior agency should perform step by step until the head office would be liable for compensation. As for the issuing bank and trading bank, the two sides should set up agency relationship. While depositors decide to lodge a lawsuit for breach of contract, card issuers should be regarded as the defendant.From the perspective of tort law, the ownership of the deposit belongs to the bank, depositors to bank is enjoyed by the creditor’s rights. Based on the fact that customers enjoy creditor’s rights to a bank, this paper will explore the problem that whether the creditor’s rights can constitute the object of torts. On this issue, the paper holds positive attitude. On this perspective, banks undertake mainly the relevant security obligations. In the case of infringement to the customer, the particularity of this kind of tort determines the establishment of the specific conditions. Within the limit of the condition, the main responsibility for the infringement in such cases should be limited to perpetrators stealing money. If the bank fails to fulfill its duty of safety protection in its office, it would take complementary liability.The fourth part of this paper will introduce the consideration of the clone card and similar cases, mainly including four aspects of content.The first one is the application of the liability for breach of contract and tort liability in the trial practice. In such cases, due to the different liability subject, the plaintiff should choose one to sue, and according to the nature of the responsibility to determine the corresponding defendant. But as the system of infringing creditor’s rights has not been explicitly stipulated in our laws, the result has certain difficulty in practice. So we will suggest the savers seeking remedy through the liability for breach of contract.The second is the effectiveness cognizance of the payment by banker. When using real bank card stealing deposit, the offender can be seen as a quasi-creditor, the bank’s payment behavior for actor is effective as it fulfill the relevant obligation, and banks no longer bear the payment obligation to the customer. When the actor using clone card steal deposits, the offender can’t be seen as a quasi-creditor, in this case, banks shall take the corresponding security obligations; do the duty of review bank card reasonably. If banks can’t identify the bank card is fake, then pay the deposit to criminal suspect, the bank’s payment behavior shall be invalid, still shall perform the payment obligation toward depositors.The third is the rationality of enter a plea in order to "criminal procedure prior to civil procedure". The criminal trial results do not have a decisive impact on civil trial in clone card disputes, and the criminal trial and the civil trial are not belong to the dispute of same parties and that based on the same legal relationship. Therefore, entering a plea in order to "criminal procedure prior to civil procedure" is not established..Fourth, the bank’s responsibility in the net silver stolen which similar to clone card disputes. In the case of the perpetrator attack the online banking system through the hackers and other forms, the bank fails to fulfill its duty of safety protection, so the bank shall be liable for the loss of the depositors. In the case of the perpetrator deceive E-bank customers using fishing websites, Trojan virus and other ways leading to the net silver stolen, owing to the customer fails to fulfill the duty to keep the e-currency account information properly, they themselves bear some responsibility and the bank is not liable.