Research On The Burden Of Proof Of Compensation For Bank Card Stolen Funds Loss

The burden of civil liability in bank card theft is complicated.In judicial practice,there are great disputes over the proof burden of the essential facts for the cardholder to claim the liability of compensation for fund loss from the card issuer and the proof burden of the disclaimer of the claim by the card issuer.The Provisions of the Supreme People’s Court on Several Issues concerning the Trial of Civil Bank Card Dispute Cases and the guiding Case No.169 have not overcome the phenomenon of different judgments in the same(type)cases in our judicial practice.In order to clarify the burden of proof among subjects,this paper starts from the basic case of guiding Case No.169,combs the legal relationship in the bank card theft dispute,and generally analyzes the burden of proof between the cardholder and the issuing bank.This paper focuses on the analysis of the reasons for the bank to undertake the security obligation,the obligation of the cardholder not to properly keep the information and the obligation of the bank to inform the bank,and builds the standard system of the burden of proof in the bank card theft case with a complete system.This paper consists of five parts.The first part,Burden of proof in Guidance Case 169.Guiding Case No.169 is a case of cyber theft,in which the cardholder claims compensation liability to the card issuing bank.The legal relationship between the two parties is the legal relationship of the savings deposit contract.The case facts that the plaintiff should prove to the defendant for claiming compensation liability based on the contractual relationship and the case facts that the defendant should prove for immunity are the focus of the trial of this case.The court determined that the facts of the case that the cardholder(plaintiff)should prove are relatively simple,while the card issuing bank(defendant)should prove more reasons for exemption,so it is easy to question whether the burden of proof is just.The second part,Burden of Proof on both parties in Guidance Case 169.In the guiding Case No.169,the cardholder provides evidence to prove that others use the name of the cardholder to conduct online transactions,and requests the card issuing bank to bear the compensation responsibility for the loss of reduced funds in the stolen swipe account.The card issuing bank fails to provide evidence to prove that it has fulfilled the security obligation,which cannot exempt it from the compensation responsibility.Therefore,as the basis for the creation of the right,the essential facts--the essential facts of the establishment of the contract relationship between the cardholder and the bank of savings deposit and the fact of theft(the cardholder’ s loss of funds)should be borne by the cardholder.The fact that the issuing bank has fulfilled the security obligation is the reason for the exemption,and the issuing bank should bear the burden of proof.The third part,The responsibility to prove the fact that the cardholder’ s information is properly kept.In the judgment of Case 169,the court argued that "cardholder’ s obligation to keep the information properly","cardholder’ s violation of the obligation to keep the information properly" is also the exemption of the card issuing bank,which should also bear the burden of proof.The fourth part,The burden of proof for the issuing bank to fulfill the notification obligation.The notification obligation of the issuing bank is an important contractual obligation besides its security obligation.Where a cardholder claims compensation against the bank for the theft of funds due to improper operations of unfamiliar financial business,the bank shall bear the burden of proof for the fact that it has fulfilled the duty of notification.The fifth part,The fault of the card holder and the issuing bank in bank card theft shall be borne by the issuing bank.It can be seen from various situations of bank card theft that as consumers of financial products,cardholders claim compensation liability for capital loss to the card issuing bank,and their rights constitution does not include the fault of the contract counterpart(card issuing bank).The cardholder only bears the burden of proof for the most basic facts of the creation of rights,such as the essential facts of the establishment of the contractual relationship of savings deposit and the fact of stealing(fund loss).However,as a professional institution,the card issuing bank bears more litigation risks.Both parties’(non-existent)faults are exempted from liability,and the card issuing bank bears the burden of proof.