The bank card was stolen, there are new rules for rights protection
As a convenient credit payment tool, bank cards are widely used in my country, and with the development of the mobile Internet, bank card online payments are increasing.
The person in charge of the Second Civil Division of the Supreme People's Court pointed out that in recent years, bank card disputes caused by bank card fraud, credit card overdraft interest fees, and liquidated damages have continued to increase.
Stealing bank cards not only infringes on the property rights of the parties concerned, but also affects the safe and stable development of the bank card payment market, with greater potential risks.
On May 25, the "Regulations of the Supreme People's Court on Several Issues Concerning the Trial of Bank Card Civil Dispute Cases" (hereinafter referred to as the "Regulations") were issued and implemented, addressing issues such as theft of bank cards, liquidated interest charges, and suspension of statute of limitations. More detailed and specific regulations are issued to regulate Internet finance in accordance with laws and regulations, prevent and resolve financial risks, and promote the legal development of the bank card industry.
The card issuing bank shall be responsible for the stolen bank card
Bank card fraud transactions are divided into counterfeit card fraud transactions and bank card cyber fraud transactions. The "Regulations" define the two types of fraudulent transactions. The main difference is "whether others use counterfeit bank cards for transactions. ".
The person in charge of the Second Civil Division of the Supreme Court stated that the cardholder and the issuing bank have formed a bank card contract legal relationship, and the "Regulations" apply the civil code's principle of no-fault imputation and the provisions of the civil code on the obligation of fault and derogation.
Accordingly, the first paragraph of Article 7 of the “Regulations” clarifies that in the event of counterfeit card fraud transactions or online fraud transactions, the debit card holder requests the issuing bank to pay the principal and interest of the stolen credit card based on the legal relationship of the debit card contract and make compensation. In case of losses, the people's court shall support it in accordance with the law.
The second paragraph stipulates that if a counterfeit card fraudulent transaction or online fraud transaction occurs, and the credit card holder requests the issuing bank to return the deducted overdraft principal and interest, liquidated damages and compensation for losses based on the credit card contract legal relationship, the people's court shall support it in accordance with the law; The people's court shall not support the request of the credit card holder to repay the principal and interest of the overdraft, liquidated damages, etc. by the card issuing bank.
The person in charge explained: "The issuing bank has stronger risk prevention, control, and tolerance capabilities than cardholders. The provision of the principle of no-fault imputation is conducive to encouraging the issuing bank to provide more secure bank card products and services. Reduce the probability of occurrence of risks from the source."
In practice, cases of third-party payment accounts such as Alipay and WeChat Pay being stolen have occurred from time to time.
In this regard, the second paragraph of Article 10 of the "Regulations" stipulates that because the relevant online payment business systems, facilities, and technologies of non-bank payment institutions do not meet the security requirements, the cardholder requests that the institution bear the first compensation liability. , The people’s court should support it.
At the same time, the third paragraph of Article 7 stipulates that the cardholder shall also bear corresponding responsibilities if it fails to properly keep the identity information such as bank cards, passwords, verification codes, and transaction verification information.
According to the principle of distribution of the burden of proof of "who claims to provide evidence" and "who possesses the evidence," Article 4 of the "Regulations" separately stipulates: if the cardholder claims that the disputed transaction is a counterfeit card fraud transaction or an online fraud transaction, it can Provide evidence materials such as effective legal documents, the location of the real card at the time of the bank card transaction, the place of transaction, account transaction details, transaction notifications, alarm records, and loss reporting records.
If a card issuing bank or a non-bank payment institution claims that the disputed transaction is the cardholder’s own transaction or a transaction authorized by the cardholder, it shall bear the burden of proof.
Liquidated damages for excessively high interest rates will be restricted
The bank card contract is a standard contract, and the penalty clause for interest charges is a standard contract.
In practice, when many card-issuing bank staff promote bank cards, they only emphasize that the credit card has an interest-free period and minimum repayment discount, and avoid talking about overdue credit card repayments that will charge overdue interest, compound interest, liquidated damages, etc., or only emphasize Credit cards with installment payments do not charge interest and other benefits, but they do not inform that installment payments will be charged on time, and liquidated damages will be charged overdue.
The person in charge of the Second Civil Division of the Supreme Court stated: “During the trial practice, due to the existence of the above-mentioned problems, cardholders often argued that the total amount of interest, compound interest, liquidated damages, and handling fees was too high. The above-mentioned behavior of the issuing bank violated the problem. The cardholder’s right to know and fair transaction rights are also improved."
In practice, some financial institutions blindly increase the number of cards issued in order to gain market share in bank cards, and do not examine the repayment ability of cardholders. This has resulted in some subjects who do not have the ability to repay become cardholders.
Although high interest rates and liquidated damages can compensate the issuing bank for the high risk of credit card overdrafts, it has increased the debt burden of cardholders.
Article 2 of the "Provisions" regulates the standard clauses of the relevant interest fee breach penalty in the bank card contract.
The first paragraph stipulates that when a card issuing bank concludes a bank card format contract, it shall do its best to prompt and explain the terms of the format of interest charges and liquidated damages.
If the obligation is not fulfilled, and the cardholder does not pay attention to or understand the clause that has a major interest with him, the clause shall not become the content of the contract.
"It should be clarified that whether the standard terms do not become the content of the bank card contract or they become the content of the contract but are deemed invalid, it only means that the credit card overdraft interest cannot be charged in accordance with the content of the clause. Interest, compound interest, liquidated damages and related fees cannot be charged in accordance with the law." The person in charge emphasized.
Regarding how to determine the standard of liquidated damages for interest charges collected by the issuing bank in accordance with the law, Article 2 of the Regulations stipulates: “The issuing bank requests the cardholder to pay overdraft interest, compound interest, liquidated damages, etc., or pay in installments in accordance with the credit card contract. If the cardholder requests an appropriate reduction of payment handling fees, interest, liquidated damages, etc., on the grounds that the total amount claimed by the issuing bank is too high, the people’s court shall comprehensively consider the relevant state financial supervision regulations, the amount and time limit of outstanding payments, and the fault of the party concerned. Factors such as the extent of the card issuing bank’s actual losses, etc., will be measured in accordance with the principles of fairness and good faith, and a judgment will be made.
The person in charge pointed out that the "actual losses of the issuing bank" and the "degree of fault of the parties" are designed to consider whether the agreed liquidated damages are too high, so as to avoid infinitely increasing the cost of default for consumers.
(Our reporter Jin Hao, our correspondent Chen Jianjia)