| In our country,credit card becomes the most popular payment tool instead of cash,it has the advantage of safety and convenience.But according to the statistics of the people’s bank of China,by the end of the third quarter of 2015,the credit card has been widely owned and used,but to pay consumption by credit card is not much,which indicates that the development of the credit card industry encounters obstacles,and the problem of credit card security is one of the main reasons for hindering the development of the industry.With the rapid development of credit card business,the contradiction between the trading parties which include credit card holders,the issuing bank is increasingly obvious,especially the problem of bearing civil liability is extremely prominent when someone has identity theft on his credit card.What this paper studies is the question of allocation of responsibilities between trading parties when credit card fraudulent is happened.To find out the problem, first,we should clarify the legal relationship between trading parties.This is the first part of this article.In credit card transactions there are four parties:issuing bank, cardholder, specially engaged commercial unit and acquirer.The relationship between cardholder and issuing bank is from the traditional lending contractual relationship to the combination of principal-agent relationship and fiduciary relationship;there are four theories about the relationship between specially engaged commercialunit and acquirer: principal-agent theory, theory of bearing responsibility,theory of credit transfer and theory of independent guarantee.The relationship between cardholders and specially engaged commercial unit is sales contract relationship or service contract relationship; the relationship between issuing bank and acquirer is the combination of principal-agent relationship and settlement relationship.After clarify the legal relationship between the parties in the credit card transactions,this article lists our country?s classic cases about credit card fraudulent in recent years,according to different causes these cases can be divided into three categories: the cases which the cardholder was hijacked, criminals used the cardholder name;the cases which cardholder lost credit card,a third person picked up and the used the credit card;the cases which a third person stole credit card information,copied pseudo card.After analyzing the verdict reason and results of the cases,we can conclude that the imputation principle of this kind of case is insufficient in the current law system.At present our country adopt strict liability for the cardholder,which has neglected the limitations of natural person.The cardholder is unable to share the loss,so the mechanism is not reasonable.At the same time,for the cardholder, there is lack of the rules of the maximum amount of accountability and the time of accountability.When credit card fraudulent is happened,the cardholder is often required to provide evidences,but technical and professional disadvantage makes it hard to provide evidences for cardholders. Fault liability principle of bank leads to such consequences :the rights and obligations between the cardholder and issuing bank are obvious unequal,it does not reflect the protection of consumer.The first four arguments are cases of unequal rights and obligations,there are disputes between the cardholder and special merchants, plea "cut off" leads to the imbalance between rights and obligations.After discusses the shortcomings of judicial practice in our country,this paper discusses the foreign and our country ?s Taiwan area’s related legal system about credit card transactions.One of the most typical is the act of honesty and credit in the United States and the general rules of civil agency.General agent proxy rules will be divided into three forms, express agent, the agent implied and apparent agency. In 1970 Congress passed the "honest and credit law" in which the most important provisions is to set up a $ 50 liability limit, it first defines "unauthorized use" range, then a predetermined allocation of the burden of proof, clear the issuer proof range, and provides for losses borne by the cardholder of a maximum of $ 50.Through the analysis of the system of other countries and regions,this paper refers to one of more developed legal system,and builds our country?s mechanism of civil liability bearing when credit card fraudulent is happened.It is mainly divided into four aspects,clear the legal relations of various parties involved in credit card transactions in bank card business management approach, and then apply the principle of no-fault liability for issuing bank, and introduce the system of the maximum amount of accountability of the United States, clear the maximum amount of accountability and the time of accountability. |
