Research On The Civil Liability Issues Of Bank Card Stealing Disputes

At present,the bank card legislation and its judicial interpretation are lagged behind,resulting in inconsistent standard of judicial referee in civil disputes that caused by bank card fraudulent behaviors,the phenomenon of "same cases,different verdicts" is not rare either,which not only affect the legitimate rights and interests of cardholders and banks,but also affect the judicial authority and judicial credibility of the court;under worse scenario,the cardholder's moral hazard can also be affected,which is not conducive to the establishment of credit system in our country.In this paper,the method of combining theory with practice,case inductive analysis and survey research method are adopted to expound the identification problem of the civil disputes caused by bank cards fraud,from the aspects of rights and obligations of both parties,the legal relationship,the principle of imputation,the burden of proof and the exemption of liability.The exploration is carried out from the following four aspects:The first part is the summary about civil disputes of bank card theft.First of all,the basic theories of bank card fraud disputes are analyzed,and the legal relationship of bank card fraud is determined from the following three aspects:whether the basis of claims is based on plea of default or plea of infringement;the relationship between the bank and the cardholder is loan contract or custody contract;whether the principle of"criminal procedure prior to civil procedure" applies.Secondly,the main obligations of the bank and cardholder are sorted out to define the responsibility scope of both parties to the contract.The second part is about the present situation and analysis on bank card fraud cases in China.In this part,based on the trial practice of bank card fraud disputes,this paper tries to sort out the present situation of the trial of such kind cases,and then,it compares and analyzes the referee rules in these cases.In the end,referee rules characteristics and differences of the existing three types of verdict results are summarized.The third part raises the dispute focus in judicial practice-"same cases,different verdict".The main differences of such cases lie in the applicable doctrine of liability fixation,how to distribute burden of proof,and how to share responsibilities.There are three kinds of imputation principles in practice:the strict liability principle,the presumption of fault,and the principle of fault liability.The main differences of the burden of proof lie in the false card transaction facts and distribution of the burden of proof for leakage of bank card information and password.In terms of responsibility commitment,it ranges from the fact that bank does not assume responsibility to the fact that bank assumes 100%of the responsibility.The fourth part discusses the identification problem of civil liability caused by bank card fraud,which isconsidered as the core of the full paper.This part starts from problems discussed in the third part,demonstrates that doctrine of presumption should be applied by learning from mature provisions of extraterritorial legislation and in view of the particularity of bank card frauds in China;in the following,it also performs demonstrations on burden of proof,proportion of compensation and exemption.