Research On The Responsibility System Of Commercial Banks In The Dispute Of Online Theft Of Debit Card

In recent years,with the rapid development of online consumption,financial consumption has shifted from offline to online.The online payment is playing an increasingly important role in people’s lives due to its convenience and efficiency.At the same time,a new type of dispute involving criminals using Internet to stole funds in the cardholder’s card--dispute over online debit card fraud has arisen.How should commercial banks bear legal liabilities in the dispute over online debit card fraud? Due to the lack of special laws and judicial interpretations on the online debit card fraud in China,local courts have different understandings of the legal liabilities that commercial banks should bear.The phenomenon of “different judgments on the same case” is prominent,which has become the key point of the practice and academic fields.As online payment is becoming more and more popular,cases related to online debit card fraud encountered by local courts have become normalized.Therefore,it is of great significance to clarify the legal liabilities of commercial banks in disputes over online debit card fraud.Researches on the legal liabilities of commercial banks in disputes over online debit card fraud in the academic area mainly focus on the normative level.Few empirical studies are found,which mainly pay attention to the comparison of individual cases,and the whole picture of the current judicial situation has not yet been investigated.Taking 266 judgments on the online debit card fraud disputes downloaded from the Chinese Judgments Online as the object,this paper takes empirical method to examine how commercial banks actually bear legal reliability in judicial practice,and responds to academic opinions with practical issues.What’s more,it draws on foreign advanced legislation experience and puts forward improvement suggestions on how commercial banks should assume legal liabilities under disputes over online debit card fraud.Divided into five parts,the paper includes an introduction and a main body.First of all,research questions of this article are mentioned in the Introduction part,showing that difficult legal liability affirmation in practice of commercial banks over the online debit card fraud is authentic and universal,and expounding the practical and theoretical value of studying this phenomenon.Secondly,the paper summarizes existing academic researches and sorts out disputes of legal liability of commercial banks in the academic circles,which mainly include the nature of liabilities,principles of liabilities and scope of obligations of commercial banks.Finally,the research design of this paper is explained,which mainly contains three parts--data sources,research methods and main contents.The second part is an overview of legislative and judicial evolution of the legal liability of commercial banks in disputes over online debit card fraud.First of all,the legislative evolution of the legal liability of commercial banks in disputes over the online debit card fraud in China is combed,which shows that no special legislation or judicial interpretation in our country can be referred to in the trial of disputes,and there is a legislative gap.Secondly,the author sorts out the cardholder liability limitation system in the United States for handling disputes over debit card fraud.Finally,the current judgment situation of China’s online debit card fraud disputes is outlined,including the temporal and spatial distribution,distributions of litigation subjects,civil cases,and methods of fraud,and distribution of the legal relationship between commercial banks and cardholders.The third part is a judicial investigation of the legal liabilities of commercial banks over the online debit card fraud.First of all,the liabilities of commercial banks are divided into three types: full liability,partial liability and no liability.Secondly,in accordance with the three types of liability above,judges’ liability principles applied to commercial banks and cardholders and performance of their obligations are summarized respectively.The empirical results of this paper show that legal liabilities of commercial banks under online debit card fraud have multiple controversies,diverse opinions of judges and prominent phenomena of different judgments on similar cases.The author also finds that in the judicial practice of online debit card fraud,disputes mainly focus on the legal relationship between the commercial banks and cardholders,liability principles applicable to the banks and cardholders,obligation scope and exemptions of the commercial banks.The fourth part is the rethinking of the legal liabilities of commercial banks over the online debit card fraud.The paper mainly responds to the relevant legislative regulations and academic disputes by investigating the current judicial situation,and reconsiders the legislative regulations,judicial interpretations and academic viewpoints.The author observes that there is a lack of research in the academic field on controversial issues in judicial practice,such as the application of strict liability or fault liability to cardholders.On the contrary,issues that have always been discussed in the academic,such as the application of strict liability or fault liability to commercial banks for the breach of contract liability is not much controversial in judicial practice.What’s more,most of the issues discussed by the academic and judicial practice cannot reach a consensus.There is no specific legislation on disputes over online debit card fraud in legal norms in China.Although the Supreme People’s Court issued the Regulations on Several Issues Concerning the Trial of Bank Card Civil Dispute Cases(the Exposure Draft),in which the concept of online fraud and fact finding are explained,the Draft has not yet come into effect and problems like regulations are too general are existing,it still fails to provide unified guidance on the liabilities of banks in online debit card fraud.The last part is the suggestions on the legal liability improvement of commercial banks in the online debit card fraud.According to the empirical results,if legal liabilities of commercial banks over online debit card fraud is not clear,damages to the legitimate rights and interests of cardholders may occur,affecting the efficiency of commercial banks,which as a result delays the further development of online payment.Therefore,on the basis of empirical research results and theoretical reflections from all walks of life,the paper puts forward the improvement suggestions on assuming the legal liabilities of commercial banks over the online debit card fraud from the perspectives of online banking fraud and third-party payment platform fraud.The author believes that commercial banks undertaking liabilities for the breach of contract under online debit card fraud is more conducive to the protection of cardholders’ rights and interests;strict liabilities should be applied to both the commercial banks and cardholders.Finally,on the basis of clarifying the obligation scope and exemptions of commercial banks under the two kinds of fraud,suggestions are given to affirm legal liabilities of commercial banks over the online debit card fraud.