Shanghai Municipal Party Committee Political and Legal Affairs Committee and Shanghai Press Group jointly produced. Focus on the hot topics of the rule of law, pay attention to the rule of law people, and spread the spirit of the rule of law.
text丨Hao Mengzhen
typesetting丨Yan Yujing
Editor丨Lu Hui
is a thin bank card, but
stores a lot of property information. If you are not careful, you will be stolen by others, which will trigger a bank card theft case.
So, how can
avoid its bank card being stolen? How can
recover the losses to a greater extent after a bank card theft incident occurs?
This issue of experts invites Wang Zhuhui, the presiding judge of the Commercial Trial Trial Division of Jiading District People's Court of Shanghai to give a professional interpretation to readers.
This issue’s expert: Wang Zhuhui, Shanghai Jiading District Commercial Trial Trial Trial Trial Court.
Is it because it was transferred from a close distance? Is it because others are malicious or are they intentional?
Ms. Zhang lives in , Jiading , , Anting Town, , one day in October 2016, Ms. Zhang suddenly received 6 text messages, showing that Ms. Zhang's Bank of China debit card had withdrawal and transfer transactions on ATM No. 1019, totaling more than 26,000 yuan. The transaction location was in the nearby Kunshan Huaqiao City. Ms. Zhang was in Jiading and had not been to Huaqiao. She immediately realized that her bank card had been stolen, so she immediately called the customer service of Bank of China to contact the customer service, and reported the debit card involved in the case to Anting police station to report the case. After investigation by the public security organs, the operator of these three transactions was not Ms. Zhang, and the bank card used was not Ms. Zhang's bank card involved in the case. At the same time, Ms. Zhang also filed a lawsuit with the Shanghai Jiading Court, demanding that the defendant Bank of China compensate her for the losses caused by the stolen bank card.
During the court debate, the defendant bank stated that the debit card transaction involved in the case occurred at the Kunshan Huaqiao Branch of the Bank of China, and the public security organs and ATMs that reported the case were handled in Anting. According to the current transportation route, the distance between these locations is only half an hour away. The defendant has reason to believe that the plaintiff can trade it on his own at the transaction point involved in the case before returning, so it cannot be proved that the bank card is not on Ms. Zhang and the transaction involved in the case was caused by fake card theft, so he requested the court to reject Ms. Zhang's lawsuit.
[Judge's Case Analysis]
After the court heard this, it was found that Ms. Zhang set up a personal bank settlement account at the defendant's office, and the defendant issued a debit card to the plaintiff Ms. Zhang. Both parties formed a savings contract relationship, and both parties should perform their respective obligations in accordance with the law. As the defendant's debit card holder, the plaintiff Ms. Zhang immediately contacted the customer service of Bank of China as the defendant's debit card, and reported the loss of the debit card involved and reported the case to the public security organs. As a depositor, Ms. Zhang has fulfilled her basic obligation of care. Moreover, the Jiading Branch of the Shanghai Public Security Bureau has dealt with the transaction involved as a fraud case, which can be explained that the transaction involved was not operated by Ms. Zhang herself.
Regarding the issue of the close distance of the locations involved in the case raised by the defendant bank, the court held that based on the statements of Ms. Zhang and the bank staff, it can be judged that Ms. Zhang colluded with others to cheat the bank, and the risk-reward ratio is not worth taking risks.
Therefore, the court determined that the transaction behavior involved was a fake card transaction. As the provider of the issuing bank of the debit card and related technologies, equipment and operating platforms, the defendant clearly occupies an advantageous position in his relationship with the depositors, and he should bear the obligation to identify the fake card. On the premise that there is no evidence to prove that the plaintiff has breached contract or committed a crime, the defendant bank should first bear the depositor's funds losses caused by loopholes in the bank's security system and technical risks. Even if the "Personal Account Opening and Comprehensive Service Agreement" stipulates that all transactions conducted with the plaintiff's fund voucher and password are deemed to be handled by the plaintiff (will) in person, the premise for the application of this clause must be that the parties conduct transactions with a real debit card, and this clause shall not apply if transactions with a fake card are traded.
In summary, as the issuing bank, the defendant paid the funds in the plaintiff's account to the non-party holding a forged debit card transaction, and failed to fulfill his obligation to ensure the security of the funds in the depositor's bank card, 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.
carelessly clicked the wrong URL, and the leaked password was transferred to others!
In 2010, Mr. Lin opened a bank savings card in Industrial and Commercial Bank of China and opened an electronic banking on the same day. In 2015, with the increasing prosperity of online electronic transactions, in order to make it easier for his business transactions, Mr. Lin applied to ICBC to open the ICBC electronic cipher, and signed the "Application Certificate" to confirm that he had read and agreed to comply with the "Customer Instructions" on the back of the certificate. At the same time, he also signed the "ICBC Electronic cipher Receiver Instructions" to confirm that he had read and understood the above content, and voluntarily abide by and assume corresponding responsibilities.
One day in 2016, Mr. Lin received a text message with the sender "95588", which reads "Dear ICBC user: Your electronic password will expire the next day. Please log in to www.ixdva.com to upgrade and activate it. Please apologize for inconvenience to you! [ICBC]". After receiving the text message, Mr. Lin logged into the URL in the text message that night using his computer at home. However, after logging in several times, the webpage kept showing that the URL was invalid. Mr. Lin felt strange, so he opened the text message again and clicked on the URL provided in the text message directly on his mobile phone. This time, Mr. Lin successfully opened the web page, which looked exactly the same as the ICBC web page you usually use. Mr. Lin confidently entered his account and password according to the requirements on the web page. Not long after, Mr. Lin received two more text messages from Industrial and Commercial Bank of China. This time he actually informed his bank card to handle the remittance, and a total of more than 240,000 yuan was transferred. Mr. Lin suddenly realized something was wrong, so he called the customer service number of Industrial and Commercial Bank of China. After listening to Mr. Lin’s story, the customer service staff told Mr. Lin that he must have received a fraudulent text message and frozen Mr. Lin’s bank card, asking Mr. Lin to go to the ICBC outlet the next day to report the case.
Because he clicked on an incorrect website, Mr. Lin lost more than 240,000 yuan at once. He believed that as a provider of online banking transaction services, the bank should ensure the security of transactions, and online banking transactions have security risks, and the losses caused should not be borne by depositors. For this reason, Mr. Lin filed a lawsuit with the court, requiring the defendant Industrial and Commercial Bank to compensate for the losses caused by theft of his deposit funds and pay the interest losses since the date of theft (calculated based on the bank loan benchmark interest rate during the same period).
[Judge's Case Analysis]
After the trial, the court held that the plaintiff Mr. Lin had obtained a bank card, opened an online banking at the defendant Industrial and Commercial Bank, and applied for a media password, and should be properly kept for the relevant media and passwords of electronic banking. The official website of the defendant is clearly recorded in the "Instructions for the use of ICBC Electronic Censor" and the "Industrial and Commercial Bank of China Electronic Banking Personal Customer Service Agreement". Moreover, after opening the online banking, Mr. Lin also actually operated the transfer business of online banking. Therefore, Mr. Lin knew the official website of the defendant.
After receiving the text message, the plaintiff Mr. Lin should have noticed that the link displayed on the information is inconsistent with the actual ICBC official website, but Mr. Lin ignored and clicked the link, and entered his password account at the same time, thus leaking his important fund information, resulting in the transfer of two funds from the bank card involved in the case through the ICBC electronic password device. In the "Instructions for the Use of ICBC Electronic Password Devices" and "Customer Service Agreement", the defendant bank has reminded the plaintiff Mr. Lin to keep the power-on password of the electronic password and not to leak the dynamic password generated on the ICBC Electronic Password to others. He specifically reminded the plaintiff to enter the numbers generated on the electronic password on the web page, and pay special attention to whether the domain name of the website is the official website of ICBC. If not, do not enter it. Therefore, the defendant has entered the obligation to inform the security.
The transfer of the two funds involved in this case was caused by the plaintiff Mr. Lin’s own fault, and the defendant was not at fault. Therefore, the court ruled to dismiss Mr. Lin’s entire lawsuit.
person card separation was stolen and blocked, and it is difficult to provide evidence and was rejected!
Mr. Zeng has a hardware and electrical business in Shanghai and Lianyungang. He often travels between Shanghai and Lianyungang. Therefore, most of the money and bank cards are not carried with him, but are often kept at home and kept by others. But this is how he ultimately caused Mr. Zeng to lose more than 160,000 yuan.
In April 2017, Mr. Zeng planned to swipe his card to shop, but when checking out, he suddenly found that the balance in his card was insufficient. Mr. Zeng was shocked. It was obvious that there should be more than 100,000 yuan in this bank card, so how could he have lost the balance of several thousand yuan? Four days later, Mr. Zeng contacted the bank customer service and reported his experience. After confirming that the bank card was stolen, Mr. Zeng went to the police station to report the case two days later and filed a lawsuit with the court, demanding that the bank compensate him for more than 160,000 yuan in economic losses and corresponding interest. The money in the card disappeared. Mr. Zeng believed that this was a stolen caused by the bank's failure to identify the fake card, but the bank insisted that it was a stolen because Mr. Zeng used the card improperly and did not save the bank card well. The two sides had a dispute.
[Judge's Case Analysis]
After the court trial, it was found that although the plaintiff Mr. Zeng claimed that his bank card was not separated from the card in Shanghai when it was stolen, he could never provide corresponding evidence to prove it. Moreover, due to his work reasons, Mr. Zeng often had separation of personal cards. After the disputed transaction occurred, Mr. Zeng not only did not promptly report to the customer service of the card issuing bank’s customer service, but instead called the customer service after 4 days and chose to report the case 6 days later. This move also makes it even more impossible to prove Mr. Zeng’s location and the real card at the time of the transaction involved.
At the same time, the court also noticed that the time when the disputed transaction occurred is also a normal transaction time. Based on Mr. Zeng's usual separation of person and card, it is impossible to determine that the card used by the card holder of the disputed transaction is a fake card. In this case, the savings card is subject to a password transaction. The plaintiff Mr. Zeng failed to provide evidence during the trial in court to prove that the defendant bank had breached the contract of leaking Mr. Zeng's savings card password and other information.
In summary, based on the principle of who claims and who provides evidence, Mr. Zeng should provide evidence to prove that the defendant, as a bank, had a breach of contract that could not identify fake cards or leaked information, but the evidence provided by the plaintiff Mr. Zeng is not enough to prove it. Therefore, the court does not support Mr. Zeng's claim that the defendant's bank requires the defendant's bank to compensate for economic losses.
is greedy for high-value credit cards and trusts others to be stolen!
Mr. Wang recently received a call, and the other party claimed that he was a staff member of Pu Development Bank . In order to expand his business, he could apply for a high-degree credit card for Mr. Lin for free, but the premise was that Mr. Wang needed to apply for a savings card of Pudong Development Bank and deposit 150,000 yuan. At the same time, the bank's mobile phone number must be kept as the staff's number. In this regard, the staff explained that it was to know whether the money had been deposited as soon as possible, so as to facilitate the application of a credit card for Mr. Wang as soon as possible.
Faced with the temptation of applying for high-value credit cards for "free" and Mr. Wang couldn't help but feel moved. On the same day, he went to Pudong Development Bank to apply for a savings card and opened the online banking business. According to the requirements of the "staff" on the previous phone, he left the bank's contracted mobile number as the mobile number provided by the "staff" on the phone, and opened mobile banking and super online banking services on the same day. On the same day, Mr. Wang also handled two transfers and remittance services in accordance with the instructions of the "staff" on the phone. However, Mr. Wang still gave himself a "mind" attitude. He was afraid that this was a fraud and did not deposit the corresponding money on the same day. Instead, he went to Pudong Development Bank again a few days later.
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 everything was fine, had confidence in depositing 100,000 yuan into the bank card.However, what Mr. Wang did not expect was that his important personal information was actually leaked as early as when he was initially handled according to the instructions of the "staff" on the phone. The 100,000 yuan was deposited shortly after, and when Mr. Wang knew nothing, he was almost transferred to the vacancies twice. The payee was the name of the "staff" on the phone who asked Mr. Wang to transfer money.
didn't wait for a high credit card, but he lost nearly 100,000 yuan. Due to the record of "voluntary" transfer of money to the other party when applying for the card, Mr. Wang couldn't even explain that this transfer was fraudulent. The angry Mr. Wang sued the bank for card application in court, believing that the bank failed to provide him with a safe and reliable trading environment and requested the court to order the bank to compensate him for his losses.
[Judge's Case Analysis]
After trial, the court held that the plaintiff Mr. Wang set up a personal settlement account at the defendant's bank and the two parties formed a savings contract relationship, and both parties should perform their respective obligations in accordance with the law.
The two payments of nearly 100,000 yuan involved in this case are the payment instructions of the defendant bank, in accordance with the agreement after receiving the payment instructions from the China Construction Bank head office authorized by Mr. Wang, transferred funds from the savings card involved in the case designated by Mr. Wang to the account designated by Mr. Wang, and the amount paid did not exceed the upper limit of the single amount agreed in the agreement.
Therefore, the defendant bank's operations did not breach or be at fault, and the plaintiff Mr. Wang also had no evidence to prove that he had economic losses of nearly 100,000 yuan. Therefore, Mr. Wang asked the defendant bank to bear compensation liability without factual and legal basis, and the court did not support it.
In addition, during the trial, the judge noticed that judging from Mr. Wang's statement about how he handled the bank card involved, Mr. Wang was likely to have suffered a fraud. It can be seen that Mr. Wang had an abnormal purpose when he first applied for the bank card. Because he believed in others' temptations, was indifferent to risk awareness, and his own awareness of protection was not strong, he eventually led to his own money being cheated. During the process of the plaintiff Mr. Wang applying for the savings card involved in the case and modifying the relevant information of the savings card, the defendant bank reminded Mr. Wang through a written customer risk warning, clearly requiring the plaintiff to ensure that "the personal information and contact information provided by me are indeed my true information", and listed the situations where bank customers may encounter fraud, including the situation described by Mr. Wang.
However, Mr. Wang knew this request and reserved his mobile phone number to the bank as a contact number for receiving text messages and dynamic passwords, thus revealing the relevant information of the savings card involved in the case, resulting in his nearly 100,000 yuan of money being stolen. Therefore, the court ruled that Mr. Wang's losses were not related to the defendant's bank and rejected all Mr. Wang's lawsuits.
Judge has something to say that
customers open a card, set up a personal settlement account in the bank, and the bank issues savings cards to the customer, and both parties form a savings contract relationship and should fulfill their respective obligations in accordance with the law.
As a bank party, should ensure the safety of customers' property to the greatest extent, promptly remind customers of safety transaction instructions, and correctly identify fake card transactions.
As a customer, should also improve its property security awareness. For example, replace the magnetic stripe card with a chip card that is not easy to be copied, pay attention to covering it when using a bank card to prevent password leakage, and retain shopping receipts with important personal information. It is particularly important to prevent malicious fraud of phone calls and text messages. Be vigilant against unknown websites and do not click at will, and you must not easily enter your important personal information.
However, in case of stolen fraud, how should we stop losses in time and increase the chance of compensation?
First of all, when you find that the bank card has abnormal amount changes, you must immediately call the card issuing bank customer service to explain the situation and make an emergency report. Then, you can bring your bank card to the nearest ATM to store 1 yuan or deliberately enter the wrong password to cause the card swallowing to prove that it was not the one who was stolen when it was stolen, and there was no omission that caused the separation of the personal card. Finally, take photos and archive the bank card and card number, fix the evidence, and report the case to the police station in time.
(all parties involved in the article are pseudonyms)
