The Research On Standard Clause’effect In Civil Debt Dispute Of Credit Card

With the rapid development of China’s credit card market, debt disputes also increased year by year, and cause a wide range of social controversy. Civil liability disputes of credit card debt can be divided into two categories:First, the cardholder defaulted debt dispute:the cardholder’repayment is not within a reasonable period, interest and fees on the use of credit cards is controversial, and repute that the bank force them to bear the high costs by format terms; Second, third-party fraud debt disputes:a third person take fraud, and form debt that are not cheat recognized by the cardholder, the loss distribution between cardholders, merchants and issuing banks and other institutions are in dispute. The disputes have a relationship with the standard terms:related to the cardholder defaulted debt disputes is the terms of the interest and expenses; related to the fraudulent debt dispute with a third party is the terms of the allocation of risk. Therefore, this study will take the format terms’content and operating results as the starting point, to analysis parties logic of the conduct, discuss the reasonable question of the law and judicial activities.In the trial of credit card debt disputes, court give a high degree of recognition to contract that are provided by the bank, let the outcome is unfavorable to cardholders,which cause a social controversy and theoretical questioned. I found:First, the two types of debt disputes all appeared negate the standard terms,but the reason is not consistent; Second, third-party fraud debt disputes have more denials than the defaulted debt disputes; Third, in the cardholder defaulted debt disputes, bank arrears amount of different customers to take a differentiated policy, indirectly led to the customers with small amount of arrears face a higher proportion of repayment. Fourth, the same reasons, such as the principle of fairness and advantages of risk control principles, are used to prove the terms’reasonable by some court, and also used to negate the reasonableness of the terms by some other courts, this phenomenon explanate the internal criteria conflict between courts.This study Implement case analysis and statistical analysis on370cases from27cities. The court’recognition or negation of the standard terms is the main line, and with a systematic analysis on the harsh and legitimacy of format terms; Court’attitude on standard, the consequences and reasons of approved or negation. After the analysis, the author found:First, the court be in a "dilemma" situation on handling the standard terms, judicial means have limitations on adjust the credit card debt disputes; Second, with the bound of asymmetric information, adverse selection, moral hazard and opportunistic and other factors, the content and implementation of standard terms both have a harsh side and legitimacy, increase the difficulty of choice; Third, there were factors that maintain the effectiveness of the standard terms in reality, there were also constraints or negative factors of the effectiveness of the standard terms, the recognition and negative selection standard of terms face the double impact of these two types of factors. When the supportive factors strength higher than the negative factors, the court will tend to approve the terms, and vice versa anti. This study take the empirical analysis method, firstly to clarify the existing research results,secondly statistics and contrast the collecting cases,and found the special case; thirdly summed up the reasons for the judgment of the Court, and lateral comparative analysis the Chinese and foreign’situation, to discuss the trial reasonable. In addition, this research have a integrated use of the theories and methods of law, economics and sociology to explain the details.In the structural arrangements of the entire study, this study is begin with a introduction. Theis part overview the existing research path, research perspective, research methods and research results, explain the research background, motivation, problem, significance, methods and innovation. The main purpose of this study is based on standard terms related to credit card debt dispute, by a systematic analysis of the court’ attitude in the trial of credit card debt disputes and the effectiveness of the standard terms, to achieve a comprehensive and objective explanation for the contents arrangement and operating results of the standard terms relataed to the credit card debt disputes.The first chapter analysis the specific content of the standard terms. This analysis include f formation, content, controversy and change of the standard terms. This part on one side discussed the stringent of format terms from content arrangements and perform effct, on other side discussed the legitimacy of the terms of the format terms from the factual and legal basis, and formed the view that:Firstly, China’s credit card market is a centralized and imperfect competitive market, five state-owned banks occupy a dominant market position, and there is a cross-representation between its executives with the principal leaders of regulate agency, this background may be conducive to the bank side to develop and implement their relatively favorable format terms. Secondly, Despite the provider have the motivation to enhance the harsh degree of format terms,but this tendency are bounded by adverse selection and competition in the market, orderly competitive market structure can reduce the harsh degree of format terms, and the basis of orderly market is the consumers’actively safeguard for personal credit and effective competition between card issuers. Thirdly, the credit card industry credit risk and fraud risk is relatively low, the bank is therefore exposed to relatively low loss, which become a stark contrast between low loss of the bank and the high proportion of responsibility of cardholder. Forthly, Standard terms comply with the law, the stringent have a downward trend in recent years due to the change of the legal norms, this reduction is not only active behavior of the banking side, and also subject to technical factors.Chapter Ⅱ theoretically discusses the question of the validity of the format terms of the credit card. The format terms of the credit card limit the option of the relative departure,the public authority part also have a restriction on standart contract, this part analysis the method, process and consequences of restriction,and found that the credit card agreements are more complexity than relatively common and commercial contracts, the terms provided by bank is a hierarchical structure, Applicant have a opportunistic tendency, expected the future card behavior is in its favor terms of format range, generally accepted all the terms of the contract. In order to limit provider’s behavior, the public authority mainly take legislative control, administrative control and judicial control. Legislative control defined standards for the other monitoring, is the basis for the other control. The format terms form three different effectiveness morphology after the control:effective, can be changed or revoked, invalid. Through the literature review, we can found the scholars controversial about the legal norms’content about the standard terms of credit card; and china’ regulation rules on standard terms of credit card is principled,and difficult to apply, which led to the weakness of specification.Chapter III empirical analysis court recognition of the standard terms. The court take a high degree of recognition on the terms about the interest and costs in the cardholder debt dispute. This research collected300cases, the court all supported the claims of the bank, identified the terms’ effectiveness (there are rejection in four cases’first instance, but commuted in the second instance; one case appears a fuzzy negative, but the verdict is still support the idea of the bank). In the case of third-party fraud debt disputes, this research collected70cases,the court also approved the most terms about the risk allocation, and bank eliminated the responsibility by asserting the validity of the advanced terms about the risk allocation in61cases. In the process of dealing with disputes, the courts mainly apply the principle of strict liability, less the principle of fault liability, in the collected300third party defaulted debt disputes, the consequences of approved the terms of the interest and expenses is that arrears amount achieve the1.98times (average) of principal amount, and banks also take different policies for different amount of arrears customers, resulting in a smaller amount of arrears customers will bear more times repayment obligations; in collected70third-party fraud debt disputes, the consequences of recognized the risk allocation terms is that the cardholder have the probability of91.43%to liable, the probability of55.71%to bear full responsibility, and total weight proportion of responsibilities is72.71%; merchants have the probability is32.86%to bear the responsibility, the probability of0%to assume full responsibility, and total weight proportion of responsibilities is16.71%; banks have the probability of12.86%to bear the responsibility, the probability of8.57%to bear full responsibility, total weight proportion of responsibilities is10.57%. The above data indicate that the current result about the implementation of the format provisions is that the cardholder bear the heaviest responsibility, bank undertake the most light responsibility.. This conclusion is also consistent with the loss rate data of credit card loan in recent years. If the responsibility is borne by multiple parties, the probability of cardholder assumes more than half responsibility is32%, which indicated that once appear a negative or circumvent for the format terms, the status of the cardholder will have a great improvement. Court approval of the standard terms reflect a lack of legislation, selective applicable law, the conflict of attributable reasons,and other problems. This part also discussed the rationality of the court approved the forma termst from three angles of control adverse selection, moral hazard, protect the non-disputes cardholder’interest.The Chapter IV analyzes the Court negation of the standard terms.In the cardholder defaulted debt disputes, this study collected300cases, but negation only appear in five cases, the probability of negative is1.67%; in the case of third-party fraud debt disputes, this study collected70cases, and negation only appear in nine cases,the probability of negative is12.86%. An important reason for occur more negative situation in terms of the risk allocation is in such disputes, the court cited the principle of fault liability, to determine whether the parties responsible for fault, not strictly in accordance with the contract, there is a small breakthrough to the privity of contract’ principle; Since the law also provides the safety and security obligations of the bank at the same time, which provide a new basis for the court’verdict, and expanding the chioce space of the Court. The legal relationship and income structure of the parties is different in the two disputes, which have the different effects on the choice of the court. By comparison with other judicial systems, we can found limitation and negation on bank’format terms appeared in many countries and regions.it mainly have two modes:one is developing regulations to restrict and deny; the other is refering the basic legal principles to deny; or combined use.Chapter V discuss the terms of format control problem from a wider perspective. This part firstly analyzed the maintenance of the standard terms legitimacy, and the fundamental factors that support the the effectiveness of the standard terms; Secondly, discussed the factors that restrict the content of the terms and negate the effectiveness of the standard terms; Finally, comprehensived the control strategy. This specific factors maintains the legitimacy of the standard terms:the consistency of credit card debt risk characteristics and the arrangement of format terms; the standard terms comply with the law; the reasonableness of the law concern the standard terms.This factors restrict the effectiveness of standard terms:the conflict between the the network structure of transaction, social trading relationship and the the principle of privity of contract; conflict between the rational card issuer and irrational cardholder; conflict between the parties’ information asymmetry, information transmission, display fuzzy and the need for quantify responsibilities. Whether the approve or negation for format terms, court ’judgement will be by these two types factors at the same time. By changing the constraints or to create the conditions, and continuously improve the strength of the consistency factor, reduce the intensity of the conflict factors, cardholder will improve the acceptability on the format terms, and the court will also increase recognition of it; otherwise anti.This paper analyzes the format terms’validity that provided by the bank.the goal is not primarily discuss the court should protect which one, and how to protect,But through the longitudinal comb the content, changes of format terms, the method, logic and concequences of court judgement on standard terms, we can found there were disputes and disagreements in hearing of similar cases, and by taking a detailed comparison on these disputes and disagreements,we can found the legal reasons and factual reasons for this. Horizontal contrast legal norms and the case of other countries or regions, we can defined the similarities and differences between Chinese and foreign. First, explain the logic of the standard terms of the arrangement of contents; Second, explain the main reasons of the court approved the format terms; Third, explain the reasons for negative the format terms; Fourth, summe up the main factors that constrain the choice of parties and court.