Effectively implement the Civil Code
Regulate the order of bank card transactions and protect the legitimate rights and interests of cardholders in accordance with the law
——The person in charge of the Second Civil Division answered reporters’ questions on the "Regulations of the Supreme People's Court on Several Issues Concerning the Trial of Bank Card Civil Disputes"
The "Civil Code of the People's Republic of China" (hereinafter referred to as the "Civil Code") is a civil code that reflects the socialist nature of our country, conforms to the interests and wishes of the people, and conforms to the development requirements of the times.
In order to implement the "Civil Code", regulate the order of bank card transactions, and protect the legitimate rights and interests of cardholders, the Supreme People's Court has formulated the provisions in accordance with the "Civil Code" and "Civil Procedure Law of the People's Republic of China" (hereinafter referred to as "Civil Procedure Law"). The Provisions of the Supreme People’s Court on Several Issues Concerning the Trial of Bank Card Civil Dispute Cases (hereinafter referred to as the “Bank Card Provisions”).
The "Bank Card Regulations" have been reviewed and approved by the Judicial Committee of the Supreme People's Court and will be implemented from the date of promulgation.
Recently, the person in charge of the Second Civil Court accepted an interview with reporters on the main issues involved in the "Bank Card Regulations."
Question: Could you please introduce the background, drafting process and significance of the promulgation of the "Bank Card Regulations".
Answer: The promulgation of the "Bank Card Regulations" is an important measure taken by the Supreme People's Court to adhere to the guidance of Xi Jinping Thought on Socialism with Chinese Characteristics for a New Era, and thoroughly implement the spirit of General Secretary Jinping’s important speech on the practical implementation of the Civil Code. It embodies the Supreme People’s Court. The court promptly promulgated judicial interpretations that were targeted, applicable, and conducive to protecting the rights and interests of the people, and insisted on serving the overall situation, serving the people, and imparting justice to the political responsibility.
The promulgation of the "Bank Card Regulations" is also an important measure to implement the spirit of General Secretary Jin Ping’s important speech at the Central Committee’s Work Conference on Comprehensive Rule of Law, focusing on new models of financial products, and serving the high-quality development of finance in accordance with the law, reflecting the renewed development of the Supreme People’s Court. Starting from the stage, regulate Internet finance in accordance with the law, and provide a high degree of political consciousness with powerful judicial services and guarantees to resolve financial risks and improve the international competitiveness of China’s finance.
As a convenient credit payment tool, bank cards are widely used in my country.
With the rapid evolution of the mobile Internet to the digital age, online bank card payments are increasing.
While the new development of financial products and financial technology has brought convenience and improvement to people's production and life, it is also accompanied by related legal risks.
In recent years, in the process of applying for and using bank cards, the number of bank card disputes caused by fraudulent use of bank cards, credit card overdraft interest fees, and liquidated damages has continued to increase. The number of cases accepted by the people’s courts has shown an increasing trend and has become widespread concern in the society. Important question.
While bank card stealing infringes on the property rights of the parties concerned, it also affects the safe and stable development of the bank card payment market, and there are potential risks.
The Supreme People’s Court adheres to problem-oriented and demand-oriented, and strives to solve difficult problems in bank card disputes and issues of public concern. Full investigations and repeated demonstrations were conducted on issues related to disputes, and the opinions of all parties were extensively listened to, and finally the "Bank Card Regulations" were formed.
The Supreme People’s Court followed the principles of judicial openness and judicial democracy when the Judicial Committee deliberated the draft of the Bank Card Regulations, and invited representatives of the National People’s Congress, members of the National Committee of the Chinese People’s Political Consultative Conference, and experts and scholars to attend the meeting. The reviewer put forward many constructive comments and suggestions.
The promulgation of the "Bank Card Regulations" has condensed the talents of all parties in society and embodies the social conditions and public opinion.
"Bank Card Regulations" in accordance with the "Civil Code" on the validity of standard contract terms, contract liability, tort liability, statute of limitations, etc., stipulate issues such as bank card theft, liquidated interest payment clauses, and suspension of statute of limitations.
This regulation is a milestone in the development of the rule of law in the bank card industry.
Its provisions on the issue of bank card network fraudulent use are of great significance to meet the needs of financial technology development, strengthen the security protection of bank card network transactions, and improve national network security laws and regulations.
Question: The provisions of the "Bank Card Regulations" on the issue of stolen bank cards have responded to social concerns. Please talk about how to correctly understand and apply the relevant regulations on bank card fraudulent transactions.
Answer: Bank card fraud transactions are divided into counterfeit card fraud transactions and bank card cyber fraud transactions. Article 15 of the "Bank Card Regulations" defines the two types of fraudulent transactions. The main difference between counterfeit card fraud transactions and online fraud transactions is whether others use counterfeit bank cards for transactions. The counterfeit card stolen transaction emphasizes that others counterfeit bank card cards for transactions; the characteristic of the online stolen transaction is that the thief does not use the counterfeit bank card to do the transaction. The focus of the determination of the bank card fraudulent transaction is "behavior that the cardholder’s account has reduced funds or increased the amount of overdraft not due to his own intention", and the transaction is not a transaction authorized by the cardholder himself. The regulation excludes bank card transactions conducted by cardholders maliciously colluding with others from the bank card fraud transactions regulated by the "Bank Card Regulations". The reason is that bank card transactions conducted by cardholders maliciously colluding with others are essentially holdings. Cardholder’s authorized transaction.
Regarding the determination of the facts of bank card stolen transactions, the "Bank Card Regulations" mainly stipulate in Articles 4 and 6 from two aspects: the distribution of the burden of proof and the rules of court certification.
Article 4 of the "Bank Card Regulations" is based on the principle of distribution of burden of proof of "who asserts the evidence" and "who possesses the evidence", and stipulates in the first and second paragraphs that the cardholders claim that the disputed transaction is a counterfeit card stolen transaction. Or for online fraudulent transactions, you can provide evidence such as effective legal documents, the location of the real card at the time of the bank card transaction, the location of the 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.
It should be clarified that the first paragraph of Article 4 of the "Bank Card Regulations" lists the evidential materials that cardholders can submit when claiming the existence of bank card theft in order to complete their initial burden of proof.
The purpose of this regulation is to guide cardholders on how to provide comprehensive evidence to prove their claims, but not to indicate that in any case, cardholders must submit all the evidence listed in this paragraph to prove their claims.
In a case, the people's court can determine whether the relevant evidence submitted by the cardholder can make the people's court form a preliminary conviction about the fact that the bank card is stolen based on the facts of the case, the cardholder's ability to produce evidence and other factors.
Since in bank card transactions, all records, data, and videos related to payment authorization are in the hands of the card issuing bank and other entities, it is difficult for cardholders to obtain and grasp the above evidence, so according to the evidence law, “who possesses the evidence” According to the principle of distribution of the burden of proof on who presents the evidence, the subject that possesses the above-mentioned evidence, that is, the issuing bank, acquiring bank, and non-bank payment institution, shall bear the burden of proof.
Article 5 of the "Bank Card Regulations" stipulates the card-issuing bank's obligation to verify and preserve evidence, and coordinate with the distribution of the burden of proof.
Regarding the liability for bank card theft, the "Bank Card Regulations" are based on the characteristics of the various types of bank card transactions and different entities. According to the differences between the disputes and the legal relationship, the provisions of Articles 7 to 12 respectively deal with the disputes between different entities. The liability for fraudulent use has been stipulated, and the principle of non-repetitive compensation is stipulated in Article 13.
The above regulations clarify the obligations and responsibilities of card issuing banks, cardholders, acquirers, special merchants, non-bank payment institutions, etc., in order to regulate the behavior of all parties, improve the security level of bank card transactions, and better build a bank card system. Has a guiding role.
Article 7 mainly provides for the determination of liability for disputes arising from the theft of a bank card when a bank card contractual legal relationship is established between the cardholder and the card issuing bank. Due to the formation of a bank card contract legal relationship between the cardholder and the issuing bank, the "Bank Card Regulations" are based on Article 577, Article 591 to Article 591 of the Civil Code According to the regulations, the principle of no-fault imputation and the provisions on liability for fault and derogation shall be applied to distinguish between fraudulent debit card and credit card fraud. The responsibilities of the issuing bank and cardholder are stipulated in four paragraphs. The core principles of this article have five points: First, bank card stolen transactions are not legally authorized by the cardholder himself. The second is to adopt the principle of no-fault imputation in accordance with the provisions of Article 577 of the Civil Code to determine the liability for breach of contract. In the legal relationship of bank card contracts, the legal basis for applying the no-fault imputation principle to determine the liability for breach of contract lies in: First, as the promoter of bank card products and services, the issuing bank should provide bank card products to obtain benefits while maintaining a safer Technology guarantees the safety of cardholders using the card, which is in line with the legal principle that risk-makers should guard against risks and the principles of relative risk and return. Second, 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 card issuing banks to provide more secure bank card products and services, reducing the probability of risk occurrence at the source, preventing and controlling financial risks, and promoting the safe and stable development of the bank card industry. Furthermore, it complies with the provisions of the "Civil Code" on the principle of liability for breach of contract. This provision is conducive to alleviating the liability of the non-defaulting party, protecting the interests of the non-violating party, and enhancing the parties' awareness of compliance. Third, because the legal relationship between the debit card contract and the credit card contract is different, the "Bank Card Regulations" distinguishes between debit card fraud and credit card fraud. Regarding the stolen credit card, the district card distribution bank has deducted the overdraft principal and interest liquidated damages, etc. and has not deducted the deduction separately. Article 7 Paragraph 1 of the "Bank Card Regulations" stipulates 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 deposit and compensate for losses based on the legal relationship of the debit card contract. The people’s court supports 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. Fourth, in accordance with the provisions of Article 592 of the Civil Code concerning faults, the third paragraph of this article stipulates that the cardholder has not checked the bank card, Passwords, verification codes and other identification information and transaction verification information are at fault in their obligation to properly keep them, and shall bear corresponding responsibilities. Regarding whether the cardholder has fulfilled the obligation of proper custody, the people’s court shall determine whether the cardholder complies with laws, administrative regulations, administrative regulations and other provisions and common practices, and whether the cardholder’s identity identification and transaction verification such as card information, passwords, etc. are properly kept Information, whether the bank card is used in a secure manner, etc. shall be comprehensively identified. Fifth, in accordance with the provisions of Article 591 of the Civil Code on derogation obligations, the fourth paragraph of this article stipulates that if the cardholder fails to take measures such as reporting the loss in a timely manner to prevent the loss from expanding and violates the derogation obligation, the card issuing bank claims to hold the card The people’s court shall support the people’s court if the person bears the responsibility for the enlarged loss.
Article 11 Regarding counterfeit card stolen transactions due to the acquiring bank’s failure to ensure the cardholder’s safety in using the card, and counterfeit card stolen transactions due to the failure of the designated merchants to perform verification obligations, between the cardholder and the designated merchant, the cardholder After disputes arise with the acquiring bank and between the cardholder and the issuing bank, regulations are made on how to determine the responsibilities of each entity.
In the aforesaid situation, since the acquiring bank and the cardholder have not established a bank card contractual relationship, if the cardholder requests the acquiring bank to bear the tort liability for the stolen bank card based on the infringement legal relationship, the people’s court shall support it, but If the cardholder is at fault for the counterfeit card fraudulent transaction, he shall bear the corresponding responsibility.
When accepting cardholders’ card transactions, special merchants are obligated to verify the authenticity of the cardholder’s signature and the authenticity of the bank card. If they fail to fulfill this obligation and lead to fraudulent transactions with counterfeit cards, the cardholder shall be liable for infringement. Liability for compensation, but if the cardholder is at fault for the counterfeit card stolen transaction, he shall bear the corresponding responsibility.
Cardholders may also only appeal to the issuing bank with which the bank card contractual legal relationship is established to bear the liability for breach of contract.
Under this circumstance, if a card issuer applies for additional acquiring banks or special contract merchants to participate in litigation as a third party, the People's Court may approve it in accordance with Article 56 of the Civil Procedure Law and Article 11 of the Civil Procedure Law.
Article 12 stipulates the responsibility of the thief.
The ultimate responsibility for bank card fraudulent use is the stolen banker. Therefore, although the cardholder can appeal to the above entities to bear legal responsibility based on their legal relationship with the card issuing bank, acquiring bank, non-bank payment institution, and special merchants, the above entities After assuming the responsibility, they all have the right to request the pirate to bear the tort liability in accordance with the law.
In view of the fact that based on the same bank card stolen transaction, cardholders have the right to claim their rights based on their different legal relationships with card issuing banks, non-bank payment institutions, acquiring banks, special merchants, stolen bankers, etc., in order to avoid If the cardholder is repeatedly compensated, Article 13 of the "Bank Card Regulations" stipulates that the amount of compensation received by the cardholder shall not exceed the total loss caused by the stolen bank card.
Question: Article 2 of the "Bank Card Regulations" regulates the issue of liquidated damages for the collection of interest charges by the issuing bank. Could you please talk about the purpose, drafting ideas and how to correctly understand and apply the regulations?
Answer: The bank card contract is a standard contract, and the penalty clause for interest charges is a standard contract. In the practice of bank cards, when the staff of the issuing bank recommends bank cards to cardholders, they only emphasize that the credit card has an interest-free period and the minimum repayment amount, while avoiding talking about the overdue repayment of the credit card will charge overdue interest, compound interest, and breach of contract. Issues such as money, or only emphasized that credit cards with installment payments do not charge interest and other benefits, but did not inform that installment payments will be charged on time, late payment and other issues, which led to cardholders not knowing or understanding the interest fee penalty. If you don’t know that the annual interest rate charged by credit card overdraft transactions is much higher than that of ordinary financial loans, sign a credit card contract and receive a credit card. In trial practice, due to the existence of the above-mentioned problems, cardholders often argue that the repayment of interest, compound interest, liquidated damages, and total handling fees are too high. The above-mentioned behaviors of the issuing bank violated the cardholder's right to know and fair transaction rights, and caused the public to question the fairness of this clause. In order to gain market share in bank cards, some financial institutions blindly increased the number of cards issued, and did not examine the repayment ability of cardholders, resulting in some subjects who did not have the ability to repay became cardholders. The financing of credit card overdraft consumption not only brings convenience to cardholders, but also comes with the risk of irrational consumers exceeding their ability to repay the overdraft. Although the high interest rate penalty can compensate the issuing bank for the high risk of credit card overdraft, it increases the debt burden of the cardholder. The high interest rate penalty clause has led to an increase in the unhealthy amount of credit card claims, a large number of civil disputes, and even malicious overdraft crimes. While having a negative impact on the cardholder’s personal credit, it is also easy to cause financial disputes and social problems. Therefore, adjusting the liquidated penalty clauses for excessively high interest charges according to the law is of great significance for guiding the card issuers to formulate liquidated penalty clauses for interest charges based on the principle of fairness and protecting the legitimate rights and interests of cardholders. Based on the above-mentioned purposes, Article 2 of the Bank Card Regulations, in accordance with the provisions of Article 496 and Article 497 of the Civil Code on the standard clauses, regulates the standard clauses of the relevant interest fee liquidated damages in the bank card contract. Regulations.
According to the provisions of Article 496 of the Civil Code, the first paragraph of Article 2 of the Bank Card Regulations stipulates the prompting and explanation obligations of the issuing bank, which requires the issuing bank to pay interest when entering into a bank card format contract. The fee-based liquidated damages format clauses fulfill the obligation of prompting and explaining. 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, it shall be deemed that the cardholder and the issuing bank have not reached an agreement on the clause and the clause shall not become the content of the contract. Article 497 of the Civil Code stipulates the invalidity of the standard clauses: "(1) There are invalid situations provided for in Chapter 6, Section 3 of the Civil Code and Article 506 of this Law; (2) The party providing the standard clauses unreasonably exempts or reduces its liability, aggravates the responsibility of the other party, and restricts the main rights of the other party; (3) The party providing the standard clauses excludes the main rights of the other party." The first category is common to other civil legal acts Invalid situation. The second and third categories are the unique invalidity of standard clauses. Their purpose is to regulate the unilateral drafting of standard clauses that one party arbitrarily pursues unilateral interests, violates the principle of fairness, and unreasonably distributes the risks and burdens in contract transactions. This article shows that although the standard clauses become the content of the contract, because they violate the justice of the contract, it is necessary to correct the unbalanced contract freedom based on the principle of fairness, and the relevant agreement of the parties should be deemed invalid due to the violation of the principle of fairness. Therefore, in the trial practice, if the form clause of the interest fee liquidated damages in the bank card contract is invalid as provided for in Article 497 of the Civil Code, it shall be deemed invalid.
It should be clarified that whether the standard clause does not become the content of the bank card contract or is deemed invalid although it becomes the content of the contract, it only means that the clause cannot bind the cardholder and cannot charge the credit card overdraft interest penalty in accordance with the content of the clause. But it does not indicate that the issuing bank cannot charge interest, compound interest, liquidated damages and related fees in accordance with the law.
Regarding how to determine the standard of liquidated damages for interest charges collected by the issuing bank in accordance with the law, the second paragraph of Article 2 of the Bank Card Regulations stipulates that: "The issuing bank requests the cardholder to pay overdraft interest, compound interest, and breach of contract as stipulated in the credit card contract. If the cardholder requests an appropriate reduction 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 and the outstanding payment. Factors such as the amount and time limit, the degree of the party’s fault, the actual loss of the card issuer, etc., are measured in accordance with the principle of fairness and good faith, and a ruling is made." Golden clauses are regulated.
"The amount and time limit for outstanding payments" is a factor that considers the degree of default by the cardholder.
"The actual loss of the issuing bank" and the "degree of fault of the parties" are factors that consider whether the agreed liquidated damages are too high, so as to avoid infinitely aggravating the cost of default for consumers.
This article essentially stipulates that the people's court sets an adjustment on the total amount of liquidated damages for interest charges requested by the issuing bank, and the upper limit shall be determined in accordance with the law.
Since credit card overdraft transactions are essentially loans made by financial institutions to cardholders, the upper limit should not be determined with reference to the upper limit of private lending interest rates.
We have noticed that on March 31, 2021, the People’s Bank of China Announcement [2021] No. 3 stipulates: “All institutions engaged in loan business shall use websites, mobile applications, publicity posters and other channels During marketing, the annualized interest rate should be displayed to the borrower in an obvious way, and it should be stated when signing the loan contract....... The annualized interest rate of the loan should be based on the total loan cost charged to the borrower and the actual loan principal occupied It is calculated in proportion and converted into an annualized interest rate. Among them, the cost of a loan should include interest and various expenses directly related to the loan. "The purpose of the announcement is to maintain the order of competition in the loan market and protect the legitimate rights and interests of financial consumers.
The value orientation of the "Bank Card Regulations" and the above regulations are consistent.
Question: Article 3 of the "Bank Card Regulations" provides for the suspension of the statute of limitations. Could you please talk about the drafting purpose of this article and how to correctly understand and apply it.
Answer: The purpose of this article is to follow the principle of good faith and protect financial claims in accordance with the law. Honesty and credibility is an important content of socialist core values and a basic principle of the "Civil Code." This provision is a concrete manifestation of promoting the in-depth integration of core socialist values into trial work and ensuring that the judicial interpretations of the people's courts play a value-leading function. Credit card overdraft is essentially the issuer’s borrowing from the cardholder. Therefore, the issuer’s financial claims on the cardholder are formed. In the case that the cardholder fails to repay the principal and interest of the overdraft and liquidated damages in accordance with the law, there is a legal claim to the card issuer. Banking on the protection of financial claims. Article 3 of the "Bank Card Regulations" protects financial claims and prevents malicious evasion of debts through the application of the relevant provisions of the "Civil Code" statute of limitations interruption system. This provision coincides with the legislative purpose of the "Civil Code" to modify the statute of limitations system and to better build a trustworthy society.
Article 3 of the "Bank Card Regulations" mainly addresses the characteristics of the credit card overdraft claim rights enjoyed by the cardholders by the issuing bank, and regulates the issue by combining enumeration and generalization.
It specifically sets out the following three reasons for the suspension of the statute of limitations: (1) The card issuing bank deducts the principal and interest of the overdraft, liquidated damages, etc. from the cardholder’s account as agreed; (2) The phone number reserved by the card issuer to the cardholder , Correspondence address, e-mail address, send mobile phone text messages, written letters, e-mails, etc., to collect claims; (3) The card issuing bank reports to the public security agency on the grounds that the cardholder is suspected of malicious overdraft.
The first and second cases belong to the "Civil Code" Article 195, "the right holder makes a request for performance" as the reason for the suspension of the statute of limitations, so the statute of limitations should be determined to be suspended.
It should be clarified that, because the object of the statute of limitations is the right to claim, and the right to claim is the right of the counterparty, the people’s court is determining its composition if the issuing bank uses the second method to request performance to the cardholder. Reaching doctrine should be adopted when the statute of limitations is interrupted.
The third reason is mainly applicable to the intersection of civil and criminal matters.
In the trial practice, there are situations in which the card issuer first reported the case to the public security agency on the grounds that the cardholder was suspected of malicious overdraft before initiating a civil lawsuit.
Under this circumstance, whether the card issuer's report can produce the effect of the statute of limitations interruption is a clear question.
According to legal principles, rights holders claim rights in the form of requests are divided into two situations: one situation is that the issuing bank directly requests performance to the cardholder, which is a “private relief” method; the other situation is that the issuing bank has Authorities, public institutions, or social organizations that have the right to handle related matters request protection of rights, which is a “public force relief” or “quasi-public force relief” approach.
The second situation belongs to the "other situations that have the same effect as filing a lawsuit or applying for arbitration" as stipulated in Item 4 of Article 195 of the Civil Code, so the statute of limitations has ceased to be effective.
This provision is also the specific application of Article 13 of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of the Limitation System in the Trial of Civil Cases in bank card dispute cases.
The article stipulates: "Where the right holder reports or complains to the public security organ, the people's procuratorate, or the people's court, and requests protection of his civil rights, the statute of limitations shall be suspended from the date of the report or complaint."
Source: People's Court News and Media Headquarters
Reporter: Sun Hang