GUANG DONG SHANGDA (FU TIAN) LAW FIRM
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Should the case of savings bank card stolen brush liability

Add Date:2015/7/1 Hits:1475 Font Size:S M L BACK
April 8, 2011, often a deposit in a bank UnionPay card. At the same time it opened an online banking, mobile banking and telephone banking. May 3, 2013, often a the credit card in the Commercial Bank of China, Langfang City, Hebei Province branch of incense and Ka billion Long Branch four pen cash transactions occurred in succession through ATM machines, cash amount was 5,000 yuan, 5,000 yuan, 5,000 yuan, 4000 yuan, fees were 52 yuan, 52 yuan, 52 yuan, 42 yuan, cash amount and fees totaling 19,198 yuan. After the transaction, often a receive four SMS reminders sent by a bank customer. Often you receive a text message immediately after a call to a customer service phone banks, and made a report public security organs. Public security organs have been on file for investigation, but the criminal case has not been closed. Public Security Organs from China Industrial and Commercial Bank of China at the time of the withdrawal retrieved surveillance video, surveillance video showed often a bank card is really a form of simulated ATM card in Langfang City Commercial Bank of China branch in Hebei Province Long billion Hong Jia Branch of others On four consecutive cash machine, cash amount plus fees totaling 19,198 yuan. Often a taken to court to require a bank for damages.

Banks argued that: first, often has a public security organs, public security organs have been on file for investigation of the case. Therefore, some of the key facts of the case through civil cases is not easy to identify, in accordance with the relevant provisions of "Supreme People's Court on suspicion of economic crimes involved in the adjudication of cases of economic disputes in a number of issues", shall be recovered by a regular criminal proceedings, such as failure pursue the reassertion of the relevant parties through civil proceedings. Second, under the existing technical conditions, as long as the magnetic stripe information in line with the reservation information, the bank no reason to refuse the customer's business application. In addition, the bank for bank card risk prevention aspects, require customers to set up a private password, magnetic stripe information and password both are indispensable. Often a personal password should have guaranteed the obligations and bank card information is not leaked. From the existing situation, do not rule out a situation often divulge personal information exists. Third, often a can prove that they did not provide any circumstances without fault or wrongdoing of a bank in the transaction, so a bank should not be held responsible. Analog card is in the Industrial and Commercial Bank ATM machine to use, it does not recognize the card withdrawals should be the responsibility of the analog card rather than a bank Industrial and Commercial Bank of China, Industrial and Commercial Bank of China should advocate a so often claimed. Fourth, the existing evidence in a civil trial could not explain precisely how they are simulated analog cards, and criminals know how often a password, therefore, need further investigation the public security organs. In summary, a bank does not agree with some of the claims often.

Beijing's Tongzhou District People's Court that: a savings contractual relationship with a bank is often formed by the Department's intention of both parties, legal and valid. According to "People's Republic of China Commercial Bank Law" Article VI, "Commercial banks should protect the legitimate rights and interests of depositors against any unit and individual violations." As a bank issuing bank shall safeguard the legitimate rights and interests often a subject to any Units and individuals violated. Safe deposit guarantee depositors and provide secure transaction devices and technology platform for the information confidential and so are the bank's depositors important obligations. As a bank specializing in financial institutions and providers of related technology, equipment, operating platform, in its relations with depositors apparent dominant position, it shall bear the identification Weika or analog card obligations. Given the often an act of ordinary depositors as well as their related financial, technical information asymmetry and other factors, it has done a deal with bank transactions without the presence of security obligations and the burden of proof of fault often a legal fact of the existence of fault. Propose a bank does not exclude the possibility of a leakage of personal information often, such a statement is only speculation, lack of factual basis, it does not provide evidence often exists a breach of contract, fault behavior, so a bank can not fight so it should make for depositors the obligation to protect the safety of funds. In addition, a bank encrypted magnetic stripe information presented in line with the reservation information, the bank no reason to refuse the customer's business application. The court held that this premise should be the cardholder's bank card transactions use, but hold Weika or analog card transactions can not absolve the bank's liability.


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