Study On The Bank's Civil Liability Determination In The Case Of Forging Deposit Cards

Deposit card is an indispensable financial tool in people's daily life,because the security of deposit card concerns the security of savings deposit.Therefore,deposit card fraud cases often produce greater social impact.After the occurrence of the case,if the cardholder can't get proper compensation for the stolen savings deposit,it will not only have a bad impact on the goodwill of the issuing bank,but also may affect the social security of the cardholder,resulting in a decrease in the overall evaluation of the society,which is not conducive to the stability and development of a harmonious society.How to correctly determine the civil liability of card issuing Banks has become the key to properly handle relevant civil dispute cases.Empirical studies have found that different court ideas about the referee of the issuing bank civil liability that is not unified,on the one hand,it is closely related to the complexity of legal relations in such cases;on the other hand,it is also related to different courts' different understandings of the ownership of savings deposits,the causes of liability reduction in the cases of false card theft and fraud,and the distribution of burden of proof for the fault of password disclosure.In case of theft of false card of deposit card brush,the proper ownership of savings deposit is the premise of the identification of the civil liability of the card issuing bank,the clear legal relationship analysis is the basis of the identification of the civil liability of the card issuing bank,and the correct distribution of the burden of proof is the key to the identification of the civil liability of the card issuing bank.Centering on the problem of the identification of the civil liability of the credit card issuing bank,this paper analyzes the factors that influence the identification of the civil liability of credit card issuing Banks,such as the ownership of savings deposit,he definition of the nature of savings contract,the system of breach of contract due to the fault of the third party,and the distribution of the burden of proof due to the fault of password disclosure.The legal nature of the deposit contract should be the contract of consumer custody.In the absence of explicit provisions on the contract of consumer custody in China,it can be formulated as a loan contract to clarify that the issuing bank has the ownership of the deposit and the cardholder has creditor status to the issuing bank.In the case of fake card theft brush,the creditor's rights interests of the cardholder are damaged due to the person who swipes the card.Before the issuing bank assumes civil liabilities to the cardholder,it does not actually suffer economic interests losses.In “contract law” horizon,fake cards do not belong to the right of the real and effective certificate,the issuing bank for unauthorized act's wrong payment behavior,it does not constitute effective repayment to the cardholder.If a card-issuing bank refuses the request of the cardholder to perform the debt,it will constitute a breach of contract to the cardholder and it is a breach caused by the fault of a third party.According to article 121 of the contract law,the issuing bank shall bear the liability for breach of contract to the cardholder,and after assuming the liability for breach of contract,the bank may recover from the person who swiping the card.When the cardholder applies to the court for the bank issuing the card to bear the liability for breach of contract,the cardholder shall bear the responsibility of proving the existence of fake card swiping and thus suffering losses.The issuing bank may request the court to reduce the proportion of its liability for compensation when determining its civil liability by proving that the cardholder is at fault for disclosing the password through proof.The innovation points of this paper are as follows.Firstly,it points out that the contradiction and conflict of the regulation of deposit ownership in the legislation is the important reason for the unclear judgment.This paper focuses on the analysis of the legal nature of the deposit contract,clarifies the ownership of the deposit and the status of the cardholder's creditor,and then proposes that the issuing bank does not suffer direct losses due to the theft.On this basis,article 121 of the contract law shall be uniformly applied to clarify the legal relationship between the card issuing bank,cardholder and the unauthorized issuer,which is a breach of contract caused by the fault of a third party.Secondly,the rule of negligence can be applied in the liability for breach of contract,and the fault of disclosure of the cardholder's password can constitute the cause for reducing the civil liability of the credit card issuing bank.Third,through empirical research,it is found that the distribution of the burden of proof of password leakage fault is different,which is the main reason for the phenomenon of different cases.This paper puts forward the theoretical basis and factual basis for the issuing bank to bear the burden of proof for password disclosure fault from the perspectives of theory and fact.Standardizing the distribution rules of the burden of proof for password disclosure fault is not only conducive to improving the protection of the legitimate interests of the cardholder,but also conducive to improving the quality and efficiency of the trial and maintaining the judicial authority.