Do I need to pay the bank if my credit card is stolen?
□ Tahara
In recent years, civil disputes between cardholders and banks caused by stolen credit cards are not uncommon.
Before the promulgation of relevant laws and regulations, to protect the rights and interests of the victims of credit card fraud cases, it is necessary to rely on the fair balance and discretion of the judge.
With the gradual improvement of laws, regulations and judicial interpretations, there have been more definite guidelines for the clarification of entity rights and obligations in credit card fraud cases.
In a credit card dispute case caused by theft, the defendant Zhang was a credit card holder of a bank of the plaintiff, and he used his birthday as the credit card password.
On January 3, 2013, Zhang and his friends were dining in a hotel. Zhang put the jacket with the credit card and ID card in the inner pocket on the back of the seat where he was sitting, and the waiter put the jacket around the jacket.
During the meal, two men sat down next to the seats behind Zhang. After one of them bent over and fumbled for Zhang's jacket, the two men left the scene.
During this process, Zhang has never left his seat.
Subsequently, some people used the credit card involved in the case to consume and withdraw money, resulting in a total arrears of about 500,000 yuan.
According to the video provided by the public security organs, the people who spent in the mall were the aforementioned two men.
The court believed that the consumption involved in the case was caused by the bank to obtain and use the credit card overdraft according to the transaction instruction issued by the criminal suspect, rather than Zhang's real wishes.
In addition, the court held that the claimant’s obligation to "take reasonable and prudent measures and keep it safe" as stipulated in the credit card application contract should be determined on the basis of the public's general cognitive standards, combined with the convenience and safety of transactions.
In this case, Zhang placed the credit card in the inner pocket and put on a jacket, which could play a blocking role, and the jacket had not left Zhang's control at the time of the incident.
In this case, the suspect steals Zhang's credit card secretly, which does not reverse Zhang's obligation to keep it properly.
At the same time, the bank did not explicitly require cardholders not to use birthday as a password. Moreover, this situation is not uncommon in reality. Therefore, Zhang's setting of a simple password should not be regarded as improper storage and use.
In summary, the court held that the defendant Zhang should not be liable to the plaintiff’s bank for the act of stealing and using credit cards by the criminal suspect.
In order to correctly hear bank card civil dispute cases and protect the legitimate rights and interests of the parties, in accordance with the "Civil Code of the People's Republic of China" and "The Civil Procedure Law of the People's Republic of China" and other provisions, combined with judicial practice, the Supreme People's Court formulated the "Supreme People's Court on Trial of Banks" Provisions on Several Issues in Card Civil Dispute Cases."
According to the regulations, in the case of bank card disputes under contractual legal relations, the cardholder whose debit card was stolen can claim compensation from the bank, and the cardholder whose credit card is stolen can not repay the principal and interest, and the cardholder does not properly keep his identity. If the information is identified, it is only liable within the scope of fault.
It needs to be pointed out that although the above cases occurred before the Civil Code and related judicial interpretations were promulgated, the court’s judgment results are consistent with the civil code’s "people-oriented" legislative concept, which fully reflects the law's attention to and protection of citizens' legitimate rights and interests.
Of course, it should be noted that although relevant laws tend to give cardholders more adequate protection status, litigation is actually only a means to provide post-event relief, and the most important thing is to prevent it from the source.
On the one hand, the cardholder should take care of the bank card in daily life, and try not to set a password that is too simple and easy to guess, so as to avoid losing the card and causing more serious consequences; on the other hand, once there is a fraud or fraud In similar situations, cardholders must report the loss and report the case in time to prevent the loss from further expanding, and preserve the evidence as much as possible, so as to have a basis in subsequent litigation.
(The author is an assistant judge of the People's Court of Xicheng District, Beijing, compiled by our reporter Pu Xiaolei)