Research On Adjudication Rules Of The Fake Bank Card Transaction Disputes

From the judicial practice of the fake card transaction disputes,it is not difficult to see that the courts have different judgments in the similar cases.There are different rules in the principle of imputation,burden of proof,substantive responsibility and other aspects.Analyzing the judicial reasons,we could find that the root of the problem lies in this situation: the majority of the courts regard the loss of fake bank card transaction as the cardholders,property loss.And the courts apply the traditional civil law theories to solve this problem while they ignore the cardholders as financial consumers who have the characteristics of decision-making preferences and bounded rationality,so the traditional civil law theories such as freedom of contract,the principle of responsibility are not perfect.The first part of this paper begins with the collate judicial cases of the fake bank card transaction disputes.Analyzing the current situation and problems of judicial decision in our country,we conclude that the courts often find the existence of the fake card transaction in the way of "presumption",and in the leakage of password,there are differences in the allocation of burden of proof.What kind of legal constitution adopted to identify responsibility between the two parties is also different.Then,the first part of this paper draws the conclusions that it is necessary to clarify the nature of the deposit contract and the ownership of the deposit,unify theoretical analysis tools on the basis of taking the weak position of the cardholders into account.Starting from the basic legal relationship between the banks and the cardholders,the second part discusses the existence and the nature of the deposit contract,draws a conclusion that the deposit ownership belongs to the banks.On this basis,we analyze the shortcomings of the traditional civil law theories in the application of the fake card transaction disputes.First of all,in the application of the liability for breach of contract,the banks shall be responsible for breach of contract.Because the banks violate the security guarantee obligation and the payment obligation.However,when the cardholders do not keep the bank card and password well,in accordance with the principle of responsibility may cause the cardholders to shoulder the proportion of heavy responsibility.And in the proportion of responsibility,the judgments differ greatly.Secondly,it is not suitable that the banks are responsible for tort under the fake card transaction disputes.The reason is that the owner of the savings is not the cardholder,while the cardholder is just a creditor,so the banks do not infringe the cardholders,property rights.Last but not least,this article will further discuss the feasibility of the theory of creditors in quasi possession,we think that it is not feasible.The main reasons are that the construction of creditors in quasi possession system has yet to be perfected.There are no provisions about creditors in quasi possession system in our country,and whether require the real creditors not to be fault is still controversial.If we apply to this theory,the legal effect of this rule is all or none,which not only can not achieve the substantive fairness of social effects,but also may lead to cardholders moral hazard.Contrasting this three theories,we believe that liability for breach of contract is also suitable to solve the fake card transaction disputes under the current rule of law.However,in view of the legal relationship between the financial service providers and the financial consumers,this paper uses the concept of financial consumers to make up for the defects of breach of contract.The last part is based on the second part,combined with the legal constitution of liability for breach of contract,the idea of protecting financial consumers' rights and interests is applied to the judicial rules of the fake card transaction disputes.So we hold the view that the banks should assume strict liability and bear the burden of proof in the password disclosure.At the same time,considering the cardholders are faced with a situation of negligent,it will lead to cardholders moral hazard if responsibilities are not given.Taking lessons from foreign experience,we think that the cardholders should shoulder limited responsibilities for their fault.