On the Civil Liability of Credit Card Theft and Fraudulent Use —— Model essay on economic law 1
First, the relevant provisions of foreign countries and the legislation and practice of civil liability for fraudulent use of credit cards in China.
(1) Relevant foreign legislation
1. Relevant regulations of the United States.
In some developed capitalist countries in the west, paying attention to protecting the interests of cardholders, that is, consumers, has become an international rule of bank cards. In the United States, the provisions on the risk liability of fraudulent use of credit cards are mainly embodied in the Consumer Credit Protection Law and the Good Faith Law. The Consumer Credit Protection Law stipulates that: the card issuer shall take measures to confirm that the user of the credit card is authorized, and the card issuer shall bear the burden of proof on whether the credit card is authorized to use; The subsequent Honesty and Credit Law further stipulates that consumers or cardholders should bear the responsibility of up to 50 dollars for unauthorized credit card consumption (including stolen, stolen or forged credit cards). Generally speaking, the relevant provisions of these two bills are mainly to transfer the risk of fraudulent use to card issuers, strictly limit the situation in which cardholders or consumers take risks, and reflect the protection of the interests of vulnerable groups.
( 1)? What is the responsibility for unauthorized allocation? The provisions of the.
? Unauthorized transfer? The definition of (changing all English symbols into Chinese) is: Article 133 of the American Good Faith Law calls the act of stealing or picking up a credit card and using it? Unauthorized transfer? The so-called unauthorized transfer refers to the electronic fund transfer initiated by credit card holders (consumers) without actual authorization, which draws funds from consumers' accounts, but consumers do not benefit from the transfer.
According to American law, transactions initiated by consumers with lost or stolen credit cards, including transfers made by consumers themselves, are unauthorized transfers, and the liability for unauthorized transfers is limited.
Limitation of liability for unauthorized transfer: The Electronic Funds Transfer Law, Regulation E and official instructions stipulate that as long as the cardholder sends a notice to the institution in a reasonable way, his liability will be limited. And the cardholder's responsibility for unauthorized transfer is divided into three levels: 50 yuan, 500 yuan and unlimited liability.
Origin of the principle of limitation of liability for unauthorized transfer: the principle of limitation of liability for cardholders established in this law originated from the case of 1976 First National City Bank v. Morakot. In this case, according to federal laws, state laws and precedents, the court ruled that the defendant was only responsible for the unauthorized expenditure of $500.
Application of the principle of non-distribution of liability: American electronic fund transfer law and E regulation also stipulate that no matter how obvious the cardholder's fault is, it will not affect the application of liability limitation. In the case of Lusen v. First American Bank of Michigan, the court held this view. In this case, the consumer negligently wrote the personal password of his ATM card together with the card on the paper, and gave the card and password to his daughter. Later, both his daughters were lost, which caused the loss of unauthorized transfer. The American court ruled that this negligence has nothing to do with whether the consumer should be responsible for the unauthorized transfer initiated by the discoverer of the card and password, and the consumer will not bear the losses caused by this negligence.
Although this provision may easily lead to the moral hazard of cardholders, cardholders may lie that a transaction is unauthorized and seek improper benefits from it. However, American law makes this provision based on the belief that most cardholders are honest. Of course, this trust is based on a huge credit system. At the same time, the law holds that issuing banks should know the risks of credit cards before issuing them, and have the obligation to investigate the credit situation of applicants before issuing them, and credit cards should be issued to people who speak credit. Moreover, the crime of credit card fraud in criminal law can also effectively overcome this moral hazard.
(2)? Burden of proof? The provisions of
The Consumer Credit Protection Act passed by the US Congress stipulates that the credit card issuing bank shall bear the burden of proof on whether the credit card is authorized to use. The Law of Honesty and Credit stipulates that if the card issuer requires the cardholder to bear the responsibility of up to $50, there is a further proof obligation, that is, it must prove that the unauthorized use of the credit card must meet other requirements stipulated by law, specifically: the cardholder has accepted the credit card; The card issuer has issued an explanatory notice to the cardholder about the potential liability; The card issuer provides the cardholder with instructions on how to send a notice to the card issuer when the credit card is lost or stolen; Unauthorized use occurs before the cardholder notifies the credit card issuer that the credit card is lost, stolen or other events; Credit card issuers provide a way to identify credit card users as unauthorized.
This inversion of the burden of proof makes the vulnerable cardholders avoid the risk of being fraudulently used because they cannot provide evidence. For card issuers with strong technical support and advanced equipment, this does not increase their burden, but helps them to actively take measures to maintain the security of cardholders.
(3)? Consumers are fully responsible? The provisions of
Card issuers in the United States generally agree with cardholders that even after reporting the loss, cardholders should bear the risk responsibility under the following circumstances: a third party falsely represents cardholders to allow or intentionally hand over credit cards to their users; The cardholder intentionally informs a third party of the withdrawal method using automated equipment or the transaction password of other transactions or other ways to identify the cardholder; Cardholders forge false transactions with third parties or special shops or engage in fraud. Although the above exceptions are not comprehensive, they are also reasonable and operable, which emphasizes the prudent obligation of cardholders in keeping and using credit cards.
2. Relevant regulations of other countries and regions
(1) relevant British regulations. According to the Banking Rules formulated by the British Trade Association and required by bank members, after a credit card is lost or stolen, unless the issuing bank proves that the cardholder has committed fraud or used all kinds of bank cards unreasonably and prudently, the cardholder shall bear the loss responsibility before reporting the loss.
(2) Relevant regulations of Korea. Paragraph 3 of Article 2 of South Korea's "He Xin Special Financial Industry Law" stipulates that the card issuer shall be responsible for all losses caused to the cardholder from the time it receives the cardholder's request to report the loss.
(3) Relevant laws and regulations in Australia. The Australian Electronic Funds Transfer Guidance Law also stipulates the responsibility of consumers to transfer funds without authorization: in the absence of fraud or gross negligence of the account holder, the unauthorized transfer only bears 150 yuan, or the balance in the account or the account institution is notified that the access method is abused, lost or stolen, or the password security as part of the access method is destroyed.
(b) China's current legislation on credit card theft and fraudulent use.
The laws, regulations and judicial interpretations of adjusting credit cards in China's current legal system are: General Principles of Civil Law of the Department of Civil and Commercial Law, and the Supreme People's Court's regulations on implementation.
At present, there are no special laws and administrative regulations in China, only the departmental regulations of the People's Bank of China? The Measures for the Administration of Bank Card Business stipulates the legal liability for fraudulent use of credit cards. Paragraph 5 of Article 52 of this Law stipulates that the issuing bank shall provide the cardholder with the service of reporting the loss of bank cards, and set up a 24-hour telephone number for reporting the loss, which can be provided by telephone or in writing, and the written loss reporting is the formal loss reporting method. And clarify the responsibility for reporting the loss between the issuer and the cardholder in the articles of association or relevant agreements? According to this regulation, when a cardholder loses his credit card, the issuing bank? Obligation? It provides loss reporting service for cardholders. But, right here, about the issuing bank? Obligation? The People's Bank of China has granted the issuing bank the right to make its own liability clauses for fraudulent use of credit cards in its articles of association or agreement. Therefore, at present, the legal responsibility of fraudulent use and loss reporting of credit cards mainly comes from the regulations and practices of commercial banks in China.
(3) Regulations and practices of China Commercial Bank
The new version of ICBC's e-banking regulations, which came into effect on June 1 2009, stipulates that customers should handle the loss reporting by themselves before the credit card is officially reported. This is the first time in the banking industry that banks are not responsible for the losses caused by customers' failure to fulfill their risk prevention obligations.
The Bank of China stipulates that the loss of credit cards must be reported by telephone, which will take effect immediately. China Bank Credit Card, China Bank City Card, and China Bank VISA Olympic Credit Card are subject to zero-risk measures for loss reporting. After the credit card is lost or stolen, you only need to call the 24-hour customer service hotline, and you don't have to take risks after reporting the loss.
Last year, Guangfa Bank took the lead in launching the first card loss protection plan 48 hours before reporting the loss. This safeguard function can effectively reduce the loss caused by the failure to find the lost credit card in time, and more comprehensively protect the interests of credit card holders and the safety of using the card. However, this protection measure does not include transactions that require passwords such as ATM machines and online payment.
China Merchants Bank was launched in April 2006? Is lost card safe? Function, only one month later than GDB, that is, the bank will bear the stolen losses within 48 hours before reporting the loss. Among them, the average card pays a maximum of 10000 yuan per person per year, the gold card 15000 yuan, and the platinum card is fully covered according to the customer's credit limit.
According to the contract of Pacific Personal Credit Card of Bank of Communications, if the cardholder forgets his password or loses his Pacific Card, the bank will not bear any responsibility under special circumstances, and the losses will be borne by the cardholder, such as all kinds of transactions using the password before resetting the password. In addition, the bank bears the risk of being fraudulently used after reporting the loss.
China Construction Bank Longka Credit Card Collection Agreement stipulates that if a credit card is lost or stolen, the cardholder shall report the loss immediately. After the loss report takes effect, the cardholder will no longer bear the debts and losses caused by the unintentional behavior of the cardholder. Summarizing the regulations and practices of the above-mentioned banks on the loss reporting of credit cards, we can see that the regulations of various banks in China on the responsibility of fraudulent use of credit cards include the following two situations: after the loss reporting, the risk of fraudulent use of credit cards is borne by the banks unless there is an exemption clause; Before reporting the loss, most banks stipulated that the responsibility for fraudulent use of credit cards should be borne by cardholders. At present, only a few banks, such as Guangfa Bank and China Merchants Bank, bear part or all of the responsibility for fraudulent use of credit cards within 48 hours after the loss is reported. In judicial practice, there has always been a liability dispute between the cardholder and the issuing bank about the loss or theft of the bank card. The court basically supported the bank's claim and ruled that the consumer should bear all the losses before reporting the loss.
Second, the defects of China's current legislation.
(2) The current legislative provisions of China
This paper holds that there are serious deficiencies in the current legislation on the legal liability of credit cards in China, mainly in the following aspects:
(a) The criteria for defining the risk of fraudulent use are too simple.
The relevant provisions of Chinese laws on the risk liability of credit card loss reporting regard whether the cardholder bears the responsibility or not as a decisive factor, and change the obligation to share the risk of credit card loss reporting from a legal obligation to a contractual obligation, without any provisions on the cardholder's quota, which expands the possibility that the bank requires the cardholder to bear the responsibility. The simplification of the premise of risk responsibility makes it impossible for the legislation to make a meaningful division of complex risks, and it is also impossible to subdivide the responsibilities of all parties according to the loss of credit cards and the different fault degrees of cardholders and issuers.
(2) The responsibility imposed on the cardholder is too heavy.
After the issuing bank issues a credit card according to the cardholder's application, the cardholder has absolute control over the credit card and shall fulfill the obligation of keeping the credit card properly. If the card is lost due to the fault of the cardholder, resulting in fraudulent losses, the cardholder shall bear corresponding responsibilities within a certain range. However, this does not mean that once the credit card is lost, it will inevitably cause losses. Losing your card is not a sufficient condition for loss, because credit card consumption is different from cash consumption, and its discontinuity in time and space requires the close cooperation of cardholders, issuing banks and special merchants in credit card transactions. When the cardholder loses his card, as long as the issuing bank and the special merchants can fully fulfill their corresponding obligations, it is usually difficult for criminals to achieve the purpose of fraudulent use. Therefore, the risk of fraudulent use of credit cards before loss reporting should be reasonably distributed among cardholders, issuers and special merchants according to the types and degrees of their faults in forming fraudulent use risks, rather than imposing all such fraudulent use risks on cardholders alone. However, judging from the credit card regulations of various card issuers in China and the provisions in the Credit Card Collection Agreement, most card issuers still stipulate that the losses before the loss of credit cards are borne by the cardholders themselves, which is very unreasonable.
(3) The responsibility imposed on banks is too light.
Judging from the system of the Measures for the Administration of Bank Cards, the obligations of the issuing bank in Article 52 stipulate the relevant responsibilities for fraudulently using credit cards. As mentioned above, this provision actually gives the issuing bank great rights and stipulates rights in its obligations. This is obviously a contradiction in legislation, which also leads to the expansion of the cardholder's liability scope and the reduction of the bank's liability in their respective articles of association or agreements.
From a legal point of view, it is unfair and unjust to assign the responsibility of the weak to the strong, which will inevitably cause great damage to the rights and interests of cardholders. Although the relationship between the issuing bank and the cardholder is an equal contractual relationship, it is usually regulated by the contract law. However, the relationship between card-issuing banks and consumers (that is, cardholders) is essentially unequal, which is not only reflected in the huge gap in economic strength between them, but also in the privilege given by law by financial institutions dominated by banks, that is, the monopoly position of the industry. This obviously violates the principle of fairness in civil law, which makes the cardholder bear too many risks, and the cardholder may have to bear losses not caused by his fault, which also violates the principle of fault liability.
In addition, from the analysis of the manifestations and reasons of fraudulent use of credit cards, it is not difficult to find that the reasons for fraudulent use of credit cards mainly lie in two aspects. The first is the technical level. Compared with today's high-tech and intelligent crimes, there are still many loopholes in the anti-counterfeiting and anti-theft equipment and technology of card issuers and special merchants. Furthermore, there is the human level, which is mainly manifested in the low professional quality of the staff of card issuers and special merchants, the irregular operating procedures, and the cardholders' failure to take good care of their credit cards. The fifth paragraph of Article 52 of the Measures for the Administration of Bank Card Business obviously simplifies fraudulent use, and even completely transfers the risk of fraudulent use caused by technical problems of the bank itself to cardholders without any fault, which is very unreasonable.
Third, improve the legislative suggestions of civil liability for fraudulent use of credit cards in China.
Because China currently supports the risk operation of reporting the loss of credit cards? The credit mechanism is not perfect. Therefore, if China wants to succeed in the credit card field, it can neither copy the European and American models nor copy the experience of Taiwan Province Province. Instead, we should formulate corresponding laws and regulations and form our own model according to our traditional national habits and learn from international excellent legislative technology, so as to better protect the rights and interests of credit card consumers.
(1) Promulgate credit card regulations as soon as possible.
On April 24, 2005, the People's Bank of China, the National Development and Reform Commission, the Ministry of Public Security, the Ministry of Finance, the Ministry of Information Industry, the Ministry of Commerce, the State Administration of Taxation, the China Banking Regulatory Commission and the Foreign Exchange Bureau jointly issued the Opinions on Promoting the Development of the Bank Card Industry, and put forward the idea of drafting the Bank Card Regulations. Although this means that in the future legislative planning, the bank credit card business will be adjusted as a whole with other bank card businesses such as debit cards, but this is a great progress in credit card legislation. The concept of "bank card regulations" is put forward, and the main legal basis for regulating credit card business comes from the departmental regulations formulated by the People's Bank of China. The Measures for the Administration of Bank Card Business rose to be an administrative norm formulated and published by the State Council, which made it superior to other rules and policies related to credit cards in legal effect, and initially formed the core of the special laws and regulations system for regulating credit card business. The improvement of the legislative level can also ensure that administrative regulations go beyond the narrow departmental interests of financial institutions to a certain extent, and give fair legal protection to the legitimate rights and interests of credit card parties. At the same time, we should also improve the supporting laws and regulations of credit cards, promulgate the model contract of credit card format, and strengthen the protection of credit card consumers' rights and interests.
(two) it is clear that the loss of fraudulent use after reporting the loss shall be borne by the bank.
The credit card is still fraudulently used after reporting the loss. The main reason is that there is often a time lag between the loss reporting person and the issuing bank issuing the payment stop note to the special merchants. The existence of time difference is caused by the lack of advanced technical means and defects. When issuing credit cards and offering credit card business, banks should consider possible risks, take corresponding management measures, provide corresponding perfect technical support, and reduce or even eliminate risks, which is the obligation of banks. At the same time, the possibility of solving the risk of fraudulent use after reporting the loss lies in the improvement of bank technology and business level, and only banks can effectively prevent the occurrence of risks. As a credit card holder, there is nothing you can do about it. Therefore, the loss of fraudulent use after reporting the loss should be borne by the bank.
(3) Clearly report the loss by fraudulent means 24 hours before reporting the loss.
There is often a time lag between losing control of credit cards and stopping payment, and fraudulent users often use this time lag to infringe the property ownership of cardholders. Therefore, it is particularly important to make specific provisions on the responsibility of fraudulent use during this period. Moreover, the author thinks that 24 hours is a suitable time period. If the specified time is too long, such as 48 hours or even longer in Guangfa Bank, it will easily lead to the cardholder's delay in reporting the loss, which may lead to further expansion of the loss. Defining the responsibility within 24 hours can not only urge the cardholder to fulfill the obligation of reporting the loss in time, but also protect the interests of the cardholder. The author thinks that in these 24 hours, the cardholder should bear the limit responsibility, the special merchants should bear the corresponding responsibility for their faults, and the rest of the responsibility should be borne by the bank.
1. Cardholder's conditions and limitation of liability
Cardholders are obliged to keep credit card documents properly. When a credit card falls into the hands of others due to the negligence of the cardholder, the cardholder has an unshirkable responsibility for the consequences. Therefore, in principle, the cardholder should bear certain responsibility for the loss before reporting the loss. It is reasonable for legal cardholders to bear part of the responsibilities after losing their cards and before reporting the loss, because they have not fulfilled their custody obligations. If all the responsibilities before reporting the loss are borne by the issuing bank or special merchants, it will undoubtedly induce moral hazard for consumers and increase the unstable factors in the field of financial consumption.
2. Make it clear that the burden of proof is borne by the bank.
The author thinks that the fairest solution to the responsibility of fraudulent use of credit cards is: adopting the principle of negligence liability, implementing the inversion of burden of proof, and financial institutions bearing the burden of proof; Cardholders are only responsible for their gross negligence, and other losses are borne by financial institutions. Financial institutions can apply for insurance from insurance institutions to transfer risks, and the cost is much lower than that of cardholders.
The losses incurred by banks can be transferred to insurance institutions. This refers to a form in which the card issuer applies for insurance with an insurance company, and when the risk loss occurs, the insurance company makes compensation, so as to avoid or reduce the actual loss. As a risk management strategy, insurance has a long history in financial risk management. As early as the 1930s, after the Great Depression, the United States began the deposit insurance system. Nowadays, the application of credit card risk management is increasing, which is an important means to spread risks and compensate losses. Card issuers can get timely and satisfactory compensation for some unexpected losses in credit card business through a small amount of premium expenditure, thus reducing or reducing risks, which is very economical for card issuers.
In addition, in electronic fund transfer, the transaction between banks and customers is recorded by transaction data, which has two characteristics compared with the traditional paper file of bank transaction records: first, the transaction data is stored in the server of the bank, and the record of the transaction process is completely made and mastered by the bank, which is in an absolute dominant position in the transaction, and the customer has no backup of the transaction data; Second, electronic data is easy to be tampered with and is likely to be used by speculators. The particularity of this trading behavior makes? Who advocates who gives evidence? This principle of proof in civil litigation cannot be applied to electronic banking disputes between banks and customers. In order to avoid this unreasonable practice that the issuing bank has all the original evidence materials, but the cardholder does not, the burden of proof of the bank should be clearly defined in the loss sharing rules in our legislation.
(4) Clarify the responsibilities that banks should bear.
Legislation should clarify the responsibility of banks: to undertake the substantive examination obligation of credit cards, or to bear the corresponding fault liability. Undertake the obligation to review the form of identity documents, or bear the corresponding fault liability.
If a credit card is fraudulently used, the card issuer will bear the responsibility under any circumstances, even the main responsibility. This is not unfair to card issuers. Judging from the credit card contract between the issuing bank and the cardholder, the issuing institution is not only an institution that issues credit cards, but also has the obligation to ensure the cardholder's safe use of the card after issuing the card. From a technical point of view, card issuers have advanced equipment and professional technicians, which can better guard against the risk of fraudulent use of credit cards. On the other hand, transferring the risk of fraudulent use mainly to card issuers will also help them strengthen security technology, speed up equipment update and continuously improve service level. From the convenience of avoiding risks, card issuers with strong economic strength can transfer fraud risks to insurance companies by introducing insurance mechanisms, thus effectively reducing the losses of both banks and customers.
1. The bank shall undertake the substantive examination of the credit card or bear the corresponding fault liability. The bank's examination of the authenticity of credit cards should be a substantive examination, not a formal examination, and the bank should do its absolute duty to examine the credit cards issued by itself. If only banks are allowed to examine credit cards in a formal way, and banks are allowed to examine their obligations in a formal way, it is unfair for depositors to be exempted from the obligation to pay interest under real credit cards. Therefore, from the perspective of balancing the interests of banks and depositors, it is necessary for banks to undertake the obligation of substantive examination of bank cards.
What is stipulated in the Administrative Measures of Industrial and Commercial Bank of China for Off-site Deposit and Withdrawal Business? The teller examines whether the accepted card is a peony smart card with remote deposit and withdrawal service, whether the card has been tested, cut, damaged or altered, and whether there is a sample card. Judging from this statement, ICBC stipulates that only the Peony Link Card will be formally reviewed. This view of the bank was supported by the court's judgment, and the Haidian District People's Court of Beijing held that? Only with naked eyes and work experience, the staff at the counter can only examine the materials, styles and colors of ordinary cards and identity documents, while banks cannot bear the responsibility of identifying other subtle differences, and only sophisticated instruments can identify them? This view has always been advocated by banks.
However, starting from the rights and obligations of the parties to the credit card contract, it is necessary for us to doubt the rationality of this determination. Credit cards are issued by banks, which proves the existence of credit card contractual relationship and its authenticity is required by the general principles of contract law. The identification of credit card authenticity is one of the prerequisites to determine the authenticity of credit card contractual relationship, and it is also the basis for banks to identify cardholders in the next step. Fake credit cards do not represent the real credit card contractual relationship. The bank's identification of the authenticity of credit cards is the first and most basic premise for it to fulfill its payment obligations. The act of paying with a fake credit card should not exempt the bank from the obligation to pay and pay interest according to the real credit card contractual relationship. In this sense, the author believes that the bank's examination of the authenticity of credit cards should be a substantive examination, not a formal examination, and banks should do their absolute duty to examine their own credit cards.
2. The bank shall undertake the obligation of formal examination of identity documents, otherwise it shall bear the corresponding fault liability. There is no legal basis, and it is unrealistic to ask banks to bear the substantive responsibility of examining identity documents. The reasons are as follows: (1) Providing authentic and valid documents to financial institutions is a legal requirement for account opening parties, which is clearly stipulated in Article 6 of the real-name registration system Provisions on Personal Deposit Accounts; In addition, from the feasibility of the actual operation of the bank, financial institutions can only formally review the authenticity and validity of the documents provided by the parties, but can not conduct substantive review, because financial institutions themselves are not authentication institutions for the authenticity of documents and have no right to make authentication conclusions.
Identity confirmation is an important link, and the bank's payment obligation and interest payment are based on it. Some scholars believe that banks should bear the responsibility of substantive examination of identity documents. They think? Between banks and cardholders, banks, as businessmen in the field of commercial law, have relatively strong professional identification ability and business risk prevention and commitment ability, while cardholders are relatively weak in these aspects. What's more, in the process of being impersonated, cardholders are in a completely passive position, and banks, as participants, should bear more positive obligations? ,? Banks can't pass on the consequences of payment errors to cardholders because they can't tell the authenticity of ID cards. Only by constantly improving working methods and strengthening the sense of responsibility of staff can we ensure the correct payment of cardholders' money and the realization of cardholders' legitimate rights and interests. Only in this way can we maintain the credibility of banks and promote their own development. ?
However, the author believes that banks are neither the issuing organs of identity cards nor the appraisal departments with professional appraisal functions, and objectively do not have the specialized skills and personnel to judge the authenticity of identity documents. If the bank conducts a substantive examination of the identity card of the party who reported the loss, there is no legal basis. Neither the loss reporting person nor the issuing authority has the legal obligation of cooperation and assistance, and at the same time, they lack the necessary facilities, professional skills and effective ways, which can not be realized in the end.
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