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    Who is responsible for the bank card being stolen? Let’s see how the court judged

    2019-03-14 11:02:27

    Financial weekly

    There are a lot of property information stored in the bank card. If you are inadvertently, you will be stolen by others and a bank card fraud case will occur. Watching the money slip away from the bank's eyes, many victims think the bank is hard to blame.

    So, how to determine the responsibility of bank card theft incident? What are the circumstances of the bank and what are the circumstances? Let's take a look at how the court answers the questions in four different types of cases.

    Case 1: A short distance away from the land

    Ms. Zhang lives in Anting Town, Jiading District, Shanghai. One day in October 2016, Ms. Zhang suddenly received 6 text messages, which showed Ms. Zhang’sBank of ChinaThe debit card has three transactions of withdrawal and transfer on the No. 1019 ATM machine, with a total amount of more than 26,000 yuan. The transaction location is in Huaqiao City, Kunshan, near the home. Ms. Zhang was in Jiading and had not been to Huaqiao. She immediately realized that her bank card was stolen. She immediately called the customer service of Bank of China and reported the debit card. I went to the Anting Police Station and reported the case.

    According to investigations by the public security organs, the operators of the three transactions were not Ms. Zhang, and the bank cards used were not the bank cards involved by Ms. Zhang. At the same time, Ms. Zhang also filed a lawsuit in Shanghai Jiading Court, demanding that the defendant Bank of China compensate for the losses caused by the stolen bank card.

    In the court debate, the defendant bank said that the debit card transaction took place at the Bank of China Kunshan Huaqiao Sub-branch, while Ms. Zhang was in Anting, only half an hour away. The defendant has reason to believe that Ms. Zhang can return after she has made a transaction at the transaction point involved. Therefore, it cannot be proved that the bank card was not on Ms. Zhang at the time of the transaction, nor can it prove that the transaction involved was caused by a fake card. Therefore, the court requested that the court dismiss Ms. Zhang. Appeal.

    After the court heard that Ms. Zhang had set up a personal bank settlement account at the defendant's office, the defendant issued a debit card to the plaintiff, Ms. Zhang. The two parties formed a savings contract relationship, and both parties should perform their respective obligations according to law. The plaintiff, Ms. Zhang, as the defendant debit card holder, immediately contacted the Bank of China customer service after she learned that the debit card had an abnormal transaction, and reported the debit card and reported the case to the public security organ.

    As a depositor, Ms. Zhang has fulfilled her basic duty of care. Moreover, the Jiading Branch of the Shanghai Public Security Bureau has treated the transaction in question as a fraud case, which may indicate that the transaction involved is not the operation of Ms. Zhang herself. Regarding the issue of the location of the defendant's bank, the court held that according to the statement of Ms. Zhang and the bank staff, it can be judged that Ms. Zhang is less likely to collude with other people in fraudulent banks. In addition, the amount involved is only 26,000 yuan, such risk compensation does not seem to be worth taking risks.

    Therefore, the court found that the transaction involved in the transaction was a pseudo-card transaction. As the issuer of the debit card and the provider of related technologies, equipment and operation platforms, the defendant clearly has a dominant position in its relationship with the depositor, and it should bear the obligation to identify the fake card. Under the premise that there is no evidence to prove that the plaintiff has breach of contract or illegal crimes, the defendant bank should first assume to the depositors the loss of depositors' funds caused by the loopholes in the banking security system and technical risks. Even if the "Personal Account Opening and Comprehensive Services Agreement" stipulates that all transactions conducted by the plaintiff's fund voucher and password are treated as plaintiffs (willingness), the application of the clause must be that the parties hold the real debit card for trading. This clause shall not apply to transactions with counterfeit cards.

    In summary, the defendant, as the card issuer, paid the funds in the plaintiff's account to the outsider who had forged the debit card transaction, and failed to fulfill the obligation to protect the funds in the bank card of the depositor, and should bear the liability for breach of contract. Ms. Zhang asked the defendant to pay the deposit loss, which was reasonable and legal, and the court supported it.

    Case 2: Error URL divulging password

    In 2010, Mr. Lin was in the publicICBCA bank savings card was opened and an electronic bank was opened on the same day. In 2015, Mr. Lin applied to ICBC to open an electronic cipher for ICBC in order to facilitate his business contacts. In accordance with the process, he signed the “Certificate of Application” to confirm that he had read and agreed to abide by the “Customer Information” on the back of the voucher, and also signed the “Notes on the Use of ICBC Electronic Coder” to confirm that he had read and understood the above contents. And voluntarily observe and assume corresponding responsibilities.

    One day in 2016, Mr. Lin received a short message from the sender “95588”, entitled “Respected ICBC users: Your electronic password device will expire on the next day. Please log in to www.ixdva.com to upgrade and activate. Please forgive us for your inconvenience! ICBC".

    After receiving the SMS, Mr. Lin used the computer at home to log in to the URL in the text message that night, but after several logins, the webpage always showed that the URL was invalid. Mr. Lin felt strange that he opened the text message again and clicked on the URL provided in the text message directly on the phone. This time, Mr. Lin successfully opened the webpage, and the ICBC webpage used by ordinary people did not seem to be the same. Mr. Lin assuredly entered the account number and password according to the requirements on the webpage. Unexpectedly, Mr. Lin received two text messages from ICBC later. This time, he was informed that his bank card was in the process of remittance, and he had collected more than 240,000 yuan before and after.

    Mr. Lin found that something was wrong. He immediately called the ICBC customer service phone. After listening to Mr. Lin’s remarks, the customer service staff told Mr. Lin that he should have received the scam message and frozen Mr. Lin’s bank card. The next day, Mr. went to the ICBC outlet to pull out the detailed report.

    Because he accidentally clicked on the wrong website, Mr. Lin lost more than 240,000 yuan at a time. He believes that the bank as a provider of online banking transaction services should ensure the security of the transaction, and the online banking transaction has security risks, and the losses should not be allowed. The depositor bears. To this end, Mr. Lin filed a lawsuit with the court, demanding that the defendant ICBC compensate the loss of his deposit funds for more than 240,000 yuan, and pay interest loss since the date of theft of funds (calculated according to the bank loan benchmark interest rate for the same period) ).

    After the trial, the court held that the plaintiff, Mr. Lin, had obtained the bank card, opened the online bank, and applied for the media cipher at the Industrial and Commercial Bank of the defendant, and was responsible for the proper custody of the relevant media and passwords of the e-banking. The real official website of ICBC is clearly recorded in the “Implementation of ICBC Electronic Ciphers” and “ICBC E-Banking Personal Customer Service Agreement”. Moreover, Mr. Lin actually operated the online banking transfer business after opening the online banking, so he knows the official website of ICBC. After receiving the text message, Mr. Lin should have noticed that the link displayed on the information is inconsistent with the actual official website, but Mr. Lin ignored and clicked the link and entered his password account to leak his important funds information. The two bank cards involved in the case were transferred out through the ICBC electronic cipher.

    On the defendant side, ICBC has reminded the plaintiff, Mr. Lin, to keep the power-on password of the electronic cipher, and not to disclose the dynamic password generated on the ICBC electronic cipher in the "Customer's Electronic Coder Requirement" and "Customer Service Agreement". To others, specially remind the plaintiff to enter the number generated on the electronic cipher on the webpage. Pay special attention to whether the domain name of the website is the official website of ICBC. If it is not necessary to enter, the defendant has fulfilled the obligation of security disclosure.

    Therefore, the court decided to reject Mr. Lin’s full petition. The transfer of the two sums involved in the case was due to the plaintiff’s own fault, and the defendant was not at fault.

    Case 3: Separation of people card is stolen

    Mr. Zeng is in Shanghai andLianyungangThe two places do hardware and electrical machinery business, usually have to travel around Shanghai and Lianyungang, so most of the money and bank cards will not be carried with you, but often at home, kept by family. But this is the way it ultimately caused Mr. Zeng’s loss of more than 160,000 yuan.

    In April 2017, Mr. Zeng planned to swipe the card to shop, but when he checked out, he suddenly found that his card balance was insufficient. Mr. Zeng was shocked. It is clear that there should be more than 100,000 yuan in this bank card. How can the balance of several thousand yuan be Nothing?

    Four days later, Mr. Zeng contacted the bank customer service to reflect his own situation and determined that the bank card was stolen. After two days, Mr. Zeng went to the police station to report the case and filed a lawsuit with the court, asking the bank to compensate himself for more than 160,000. Yuan’s economic loss and corresponding interest.

    The cash money in the card is missing. Mr. Zeng thinks that this is a fraudulent brush caused by the bank not identifying the fake card, but the bank insists that Mr. Zeng used the card improperly and was stolen without saving the bank card. No less.

    After the court heard that the plaintiff, Mr. Zeng, claimed that his banker was not separated from the card in Shanghai when he claimed that the bank card was stolen, he could not provide evidence to prove it. Moreover, due to his work, Mr. Zeng often separated the cards. After the dispute occurred, Mr. Zeng did not promptly report the stolen brush to the card-issuing customer service. Instead, he called the customer service after 4 days, and chose to report the case after 6 days. This move is even more difficult to prove the position of Mr. Zeng and the real card when the transaction occurred.

    At the same time, the court also noticed that the time when the disputed transaction occurred was also the normal trading time. In combination with Mr. Zeng’s usual separation of people and cards, the comprehensive consideration could not conclude that the card used by the cardholders was a fake card.

    In this case, the disputed savings card was required to be traded by password. The plaintiff, Mr. Zeng, failed to provide evidence in the court hearing to prove that the defendant bank had breach of contract information such as Mr. Zeng’s savings card password.

    In summary, according to the principle of who advocates the burden of proof, Mr. Zeng should provide evidence to prove that the bank has a breach of contract that cannot identify the fake card or disclose the information. However, the evidence provided by the plaintiff Mr. Zeng is not sufficient to confirm, so Mr. Zeng asked the defendant to compensate the bank. The court did not support the claim of economic loss.

    Case 4: Trusting others to be stolen

    Mr. Wang had received a phone call from the public. The other party claimed to be a bank employee. In order to expand the business, Mr. Lin can set up a high-value credit card for free, but only if Mr. Wang needs to apply for a deposit card of the bank and deposit it. 150,000 yuan, at the same time to the bank signing mobile phone number to be the number of the staff member.

    In this regard, the staff explained that it was to be able to know whether the money had been deposited in the first time, so as to facilitate the credit card for Mr. Wang as soon as possible.

    In the face of the "free" temptation to handle high-value credit cards, Mr. Wang was moved. On the same day, he went to the bank to apply for a savings card and opened the business of online banking. According to the requirements of the “worker” in the previous call, the bank signed the mobile phone number as the mobile phone number provided by the “worker” in the phone. Mobile banking and super online banking were also launched on the same day. Subsequently, Mr. Wang also handled two remittance and remittance operations in accordance with the instructions of the “staff” on the phone.

    Mr. Wang was also worried about the fraud, and did not deposit the corresponding money on the same day. Instead, after a few days, he went to the bank again. This time, Mr. Wang changed the original reserved mobile phone number to his own mobile phone number, and also modified the transaction password. Mr. Wang, who thought that he had already done everything, was able to safely deposit nearly 100,000 yuan into the bank card.

    However, what Mr. Wang did not expect was that his important personal information was already leaked as early as the instructions of the “staff” on the phone. The 100,000 yuan was deposited shortly, and Mr. Wang had nothing to do. Under the circumstances, the bank account was quickly diverted twice, and the payee was the name of the “worker” in the initial call to let Mr. Wang transfer.

    The high-value credit card did not wait, but he lost nearly 100,000 yuan. Because of the record of “voluntarily” transferring money to the other party when he first started the card, Mr. Wang could not even explain that the transfer was fraudulent. Mr. Wang, who was angry, told the bank that the bank had failed to provide himself with a safe and reliable trading environment and asked the court to order the bank to compensate him for the loss.

    After the trial, the court held that the plaintiff, Mr. Wang, set up a personal settlement account at the bank of the defendant, and the two parties formed a savings contract relationship, and both parties should perform their respective obligations according to law. The payment of two sums of nearly 100,000 yuan involved in the case was made by the defendant bank after receiving the payment instruction from the bank head authorized by Mr. Wang, and appointed to Mr. Wang from the deposit card designated by Mr. Wang in accordance with the agreement. The account is debited and the amount paid does not exceed the upper limit of the single amount agreed in the agreement. Therefore, the operation of the defendant bank did not violate the contract or was at fault, and the plaintiff, Mr. Wang, also had no evidence to prove that there was a certificate of economic loss of nearly 100,000 yuan. Therefore, Mr. Wang asked the defendant bank to assume the liability for compensation without any facts and legal basis. Not supported.

    During the trial, the judge noticed that Mr. Wang had an unusual purpose when he first applied for the bank card. Because he was tempted by others, and his risk consciousness was indifferent, his sense of protection was not strong, and eventually his money was defrauded. In the process of handling the relevant savings card and modifying the savings card information, the defendant bank has reminded Mr. Wang through the written customer risk warning, clearly requesting the plaintiff to ensure that “the personal information and contact information provided by me are true. "Real information" and listing of bank customers who may be subject to fraud, including the situation described by Mr. Wang.

    However, Mr. Wang knows this request and reserves the mobile phone number of others to the bank as the contact phone number for receiving the SMS notification and the dynamic password, thus revealing the relevant information of the savings card involved, resulting in theft of nearly 100,000 yuan. . Therefore, the court ruled that Mr. Wang’s loss was not related to the defendant’s bank and dismissed all of Mr. Wang’s petition.

    Financial Tips: How to increase the odds of winning after being stolen

    From the four cases, it is not easy for banks to make compensation after being stolen. The customer's claim must be supported by sufficient evidence. In the event of a stolen brush, how should we stop the loss in time and increase the probability of paying? The court suggested that when it is found that the bank card has an abnormal amount of change, you should immediately call the card-issuing customer service to explain the situation, and also take a photo of the bank card and card number, and promptly report to the police station. In addition, you can bring a bank card to the nearest ATM machine to verify that it was not consumed by the stolen brush, and that the card was not separated due to its own omission.

    Wang Zhuhui, the trial court of the Commercial Court of the People's Court of Jiading District, Shanghai, said that the client opened the card, set up a personal settlement account at the bank, and the bank issued a savings card to the customer. The two sides formed a savings contract relationship and should fulfill their respective obligations according to law. As a bank, we must maximize the protection of customers' property safety, promptly remind customers of secure transaction instructions, and correctly identify fake card transactions.

    As a customer, you should also raise your awareness of property security. For example, when using a bank card for transactions, you should cover up to prevent password leakage and keep shopping notes with important personal information. It is especially important to prevent malicious scams on the phone and text messages. Be alert to unknown websites. You should not click anywhere, and you should not easily enter your important personal information.

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    Editor in charge: Li Limeng RF13188

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