| In cases,in which depositors require the bank as the defendant to pay for the deposit stolen personal loss,courts tend to decide the bank violate the security obligation and demand the bank bearing the liability for compensation.However,because of the indefinite provision in law of the obligation,there is difference in understanding and application of the law with judges,leading to that when the judge such similar civil cases,inevitably appeared "same cases,different sentence".This result in that the card holder and banks can not foresee the legal consequences of false card stealing deposit dispute.In this paper,in the perspective of bank obligation after false card stealing deposit,studies the security obligation of bank towards bank card.First of all,this paper obtains from the two case of false card fraudulent use.Through analyzing the court’s sentence,the bank security obligation is brought and lay the practice foundation of discussing the obligation.Secondly,discusses the nature of the bank security obligations.By combing the current legislative regulations on bank security obligations,foreign and Chinese scholars’ views about the properties of the bank security obligations,we know that security obligations has two legal natures which are legal obligation and contractual obligation.It also same with the bank security obligation comparing the applicable scope of the bank security guarantee obligations in the contract law and tort law,putting out that in cases about false card fraudulent using,security obligation of bank turns out the relevant obligation under the contract.Bank shall bear corresponding liability for breach of contract.Then,by reading the understanding of judges about the security obligation of banks in cases false bank card fraudulent use,we know that the security obligation of banks covers two parts which is informing the crime means and ensuring the safety of trading venues.Based on modern civil justice and combined with the principle of good faith,risk control theory and risk benefit theory which is the legal principle source of bank’s security obligations,we affirm that protect the cardholder’s card number and other account information and identify the authenticity of card should be included in the bank security obligations content.Finally,exploring the liability of breaching of card security obligations.Firstly,discussing the principle of presuming liability.Based on that security obligation of bank turns out the relevant obligation under the contract and the actual situation of the card information disclosure way of social life,we consider that should be different from general default liability imputation principle,adopt the principle of fault.Then analyze the specific circumstances where responsibility should be considered.In my opinion,bank’s security obligations should have its border.When defining the bank card the scope of the security obligation,the court shall be on the basis of the principle of good faith and fairness and justice,examining the parties if there is a fault and the size of the fault,and relationship between the action with damage results.And the court shall apply the principle of benefit measure carefully,when determining the responsibility and duty proportion.The social must realize that the bank’s security prevention capacity is limited in a certain period of time,and can not only emphasis on the weak position of the cardholder to avoid the cardholder’s obligation.That will lead to the unreasonable expansion of bank security obligation. |
