Study On The Civil Liability Of The Fraudulent Bank Card

With the rapid development of the social economy and the continuous progress of the financial industry,the bank card payment model has become one of the indispensable means of consumption.The bank card is like a "double-edged sword",it brings great convenience to the people and also many security issues.Especially in recent years,the use of bank cards has resulted in more savings contract dispute,the frequent fraudulent bank card which seriously affected the security of depositors and financial institutions.In recent years as the case of fraudulent bank card is a new type of case in the people's court,all the courts have no unified judicial judgment rules,and the judicial practice of handling cases in judicial practice is inconsistent.The main reason for this phenomenon is that the current legislation in China is relatively limited in adjusting fraudulent bank card,and there is no special regulation of laws and regulations.The existing laws have no specific provisions on savings contracts,and there are various opinions on the ownership of bank deposits.In civil legal relations,the distinction between savers and Banks is unclear,there is no unanimous decision on which subject is responsible and the proportion of responsibility,and lacks of legal basis for the bank to bear civil liability.This not only makes the protection of relatively weak depositors' rights not guaranteed,but also makes it difficult for the people's court to deal with such cases.In view of that problem,this paper focuses on analyzing and solving these problems,and put forward some suggestions by comparing the experience of western developed countries,which have some reference to the future judicial material work.This paper is divided into five parts,the first section describes the concept of bank cards,the concept and the type of fraudulent bank card,then analyzes the current situation of unauthorized data.The second section analyzes the nature of the civil liability of the bank card.The first title mainly discusses the civil legal relationship between bank card parties.The second title summarizes the main points of savings contract in China,including the view of custody contract,the perspective of consumption,and the view of consumer loan contract.According to the analysis,the author agrees with the view of consumer loan contract,then the conclusion that deposit ownership belongs to the bank.Finally,it is concluded that the responsibility of the bank should be the liability for breach of contract The third section analyzes the liability principle and the determination of civil liability.Through the analysis of the principle of fault and the principle of no-fault,the author has obtained the principle of applying strict liability as the general imputation principle and the principle of imputation.Then,the article analyzes the constitutive requirements of the four civil liabilities,such as default behavior,damage fact,causality and subjective fault,so as to determine the civil liability of the bank card's theft,and analyzes the reasons why the bank can be exempted from liability.The fourth section analyzes the responsibility of the civil liability subject and the main body of the fraudulent bank card,and then puts forward my own opinion on the distribution of the burden of proof.The last section draws on the experiences of western developed countries,proposed consummates our country correlation legislation,setting up the limitation of liability,building diversified dispute processing mechanism,setting up the bank credit report the loss of security function and establish a customer credit database.