| The phenomenon of debit card theft is common in judicial practice,but there is always a big controversy about the nature of the theft and the discussion of the liability for damages.The core reason is that the legal relationship between the cardholder and the account bank has not been clarified.In the first part of this paper,from the perspective of judicial practice,the author combs the problems of bearing civil liability after the debit card is stolen and swiped,and finds that there are three main judgment results: full liability of the Bank of deposit,no liability of the Bank of deposit,proportional liability of the bank of deposit and the cardholder.The main reasons are different legal relationship between the cardholder and the Bank of deposit,different content of obligation,different basis of civil liability and different distribution of burden of proof;The second part starts with the analysis of the legal relationship between the cardholder and the Bank of deposit,demonstrates various viewpoints of the academic and practical circles,and finally puts forward that the relationship between the Bank of deposit and the cardholder is a savings contract,and demonstrates the legitimacy of the relationship between the savings contract;The third part discusses the obligations of the Bank of deposit and the cardholder under the savings contract,focusing on the obligations of safety prompt,technical guarantee,environmental safety,prudence,confidentiality and other security obligations of the Bank of deposit,as well as the cardholder’s duty of care;The fourth part discusses the basis of civil liability and responsibility bearing after the debit card is stolen and swiped,puts forward the constitutive requirements of the right appearance liability,and simply discusses the constitutive requirements,so as to judge whether the opening bank needs to bear civil liability to the cardholder.Therefore,based on the cases in judicial practice,combined with the analysis of the existing theories,this paper points out that the stolen brush infringes the ownership of the money of the account bank,not the deposit right of the cardholder,so there is no tort liability between the account bank and the cardholder.On this basis,to judge whether the opening bank has "paid off" the debt to the cardholder,we should use the constitutive elements of the right appearance responsibility for reference. |
