Research On The Bank’s Liability For Default In The Case Of Bank Card Online Theft

In recent years,the increasing number of bank card civil disputes caused by online swiping has aroused widespread concern in the society.However,throughout the judicial practice of such cases,courts in different places do not agree on the fact of online theft and the bank’s breach of contract,resulting in large differences in the judgment results of courts in different places.On May 25,2021,the Supreme People’s Court issued the Regulations on Several Issues concerning the Trial of Bank Card Civil Dispute Cases(hereinafter referred to as the Regulations on Bank Card),and subsequently issued the Guiding Case No.169,which provides unified and standardized guidance for such cases.By analyzing the relevant judgment documents before and after the implementation of "Bank Card Regulations",the author believes that there are still some deficiencies in the identification of the facts of online theft and the liability of the parties in the practical application,and further research is still needed to clarify the responsibility distribution and division of such disputes.This article is divided into five parts.The first part starts with the concept of online fraud,distinguishes it from traditional counterfeit card fraud,and argues that the characteristics of online fraud are the behaviors that do not use forged physical cards and rely on the Internet,and briefly analyze the current the main methods and frequent causes of network fraud.The second part uses the basic theories in civil law norms,first analyzes the civil legal relationship between the most critical responsible subjects,namely the civil legal relationship between the bank and the cardholder,and then argues that the main obligation of the bank in the contract is to pay Obligations and incidental obligations,and finally analyzes the principles and constituent elements of the bank’s liability for breach of contract.The third part analyzes the current situation of legislation and judicial judgment and introduces three relevant typical cases after the promulgation of "Bank Card Regulations",which provides ideas for the following research.The fourth part,based on the cases summarized and introduced above,analyzes the problems frequently encountered in determining bank liability for breach of contract in such cases,mainly including three aspects: the inconsistent identification standards of fault between bank and cardholder,the chaotic distribution of burden of proof,and the inconsistent judgment standards of bank liability.The fifth part puts forward suggestions for improving the above three problems according to the characteristics of online fraud and believes that the degree of fault of the cardholder should be divided under the principle that the bank assumes no-fault responsibility,and the bank should be responsible for the facts and information of online fraud.As for the burden of proof for disclosure,it is clear that "Bank Card Regulations" should be strictly applied in the trial of such cases,and the proportion of the bank’s liability is divided into four specific situations.It is hoped that the research in this paper can improve the relevant adjudication rules in the bank’s breach of contract liability in the case of bank card theft and balance the interests of the bank and the cardholder.