Analysis Of The Legal Issues Of Abnormal Bank Card Withdrawal Transactions

This article is to compare the case of XU TING and the similar case in Britain that bank didn't blame, and to analyze the opinions and conclusions from scholars domestic or abroad, then according to financial status of China, to propose advices for improving the self-service management system of bank card in Chinese market, and also state the opinion that behaviors with different intentions should be treated differently.First, if a cardholder is unaware of taking more money when ATM dispensing mistakenly, based on the principle of protection vulnerable groups, whatever the bank suffers loss or not, it should not ask card holder to pay back. This kind of risk can be transferred by restraining ATM devices suppliers or enforcing the compulsory insurance system. Also we can reduce the ATM issues in technology terms.Second, if a cardholder is aware of the ATM dispensing mistakenly, and still takes money on purpose, the bank can pursue the civil liability through legal action, and require returning of principal. Since it is the fault of bank firstly, we recommend not protecting banks to ask holder to return the interest of such principal. But the bank can record this behavior in the cardholder's personal credit information system.Third, if a cardholder is aware of the ATM dispensing mistakenly and operate repeatedly on purpose, resulting in large losses of financial institutions, based on the principle of public order and good morals, it should be treated as a criminal offense, and should be hold criminally responsible.Based on various of opinions and the criminal law situation of our country, we recommend to propose special provisions in the Penal Code or to add the specific description in the existing terms, to constraint the malicious behavior on ATM. When defining this crime, we should pay attention to the following 3 points:1, There should be clear evidence indicating the cardholder is aware of the problem on ATM; 2, There should be clear evidence proving the cardholder have a subjective intention to repeat the operation; 3, the cardholder's behavior should be serious and refuses to return the illegal proceeds.Since such cases are caused by equipment malfunction, not universal, the sentencing standards for such acts should follow principle of light sentence. The proposed sentencing standard is within two years, in addition to the returning of illegal proceeds, other penalties should not be more than thirty thousands.