“克隆”银行卡之民事责任
- 期刊名称：《中国法律》
“克隆”银行卡之民事责任
章艺霞（中国人民银行江门市中心支行）
林 妙（中国人民银行江门市中心支行）
近年来，随着银行卡业务的迅速发展，围绕银行自动柜员机出现的不法分子“克隆”银行卡窃取储户资金的案件频频发生。不法分子多通过在银行的自动取款机上加装盗窃装置，窃取储户的银行卡卡号及密码并伪造卡片，通过取现、转账或消费等行为窃取卡内资金。由于在实务中被“克隆”的银行卡主要是借记卡，因此本文试图就借记卡被克隆情形下，相关各方的法律责任做一具体分析，并进一步探讨银行应该如何防范此类风险的产生。
一、银行卡当事人之间的法律关系
（一）发卡行与储户
借记卡法律关系主要是银行卡发卡行和银行卡储户之间的民事法律关系。不同于贷记卡先透支后还款的特点，借记卡储户需先存款，才可支取现金或消费，这与一般的储蓄并无区别，因此，银行卡发卡行与储户之间的关系是储蓄合同关系。储蓄合同不在我国合同法规定的有名合同之列，属无名合同。对于储蓄合同的性质，学界存在保管合同说和借款合同说两种观点。前者不符合合同法的基本原理，根据我国合同法，保管合同转移标的物的占有权，但不转移所有权，所以保管人必须返还原物；而储蓄合同的标的物是货币，属种类物，对于种类物除非通过条款加以特定化，否则一旦被占有即对其拥有所有权，银行只需将同种类、同数量的货币还给存款人即可，无须返还原物。也就是说，货币的占有和所有权是不能分离的。此外，保管合同保管人一方不得使用保管物，而银行吸收的存款是其开展业务的基本工具。借款合同说认为储户将钱存入银行后，这些钱的所有权转移给银行，即储户享有对银行的债权。储蓄卡实质上是银行为储户出具的一种债权凭证，储蓄卡上所记载的款项(余额)，只是还款或借款记录，而该款项实际为银行所控制和占有。因此，储蓄卡上记载款项的所有权属于银行，储户只拥有债权。因借记卡法律关系是储蓄合同关系，当不法分子通过“克隆”银行卡盗取账户资金时，该不法行为侵害的是银行的财产权，银行有权要求侵权行为人承担侵权损害赔偿责任，而银行与储户之间的储蓄合同关系并未受到影响，原则上储户依然有权依据储蓄合同的约定行使债权，要求银行还本付息。
（二）储户与特约商户
储户在购物或接受服务时，与特约商户之间只是一般的商品买卖合同关系，这种关系是银行卡交易的基础，但它又独立于银行卡交易关系，储户和特约商户发生基础合同关系如商品质量、服务质量方面的纠纷，不得作为拒绝支付所欠银行款项的抗辩理由。
（三）发卡行与特约商户
发卡行与特约商户为委托代理关系，银行是受托方，特约商户是委托方，双方通过签订委托代理协议，银行代理商户与储户进行交易结算。
（四）发卡行与异地取款行
除了开户行之外，实践中还经常涉及异地取款行。信息技术与互联网的迅速发展使得越来越多的银行已经加入银联，大多数的银行卡不仅可以同行异地取现，同时还具有跨行交易的功能，这使得被取款的银行和开户行往往不是同一个银行。从代理制度上分析，异地取款行只是开户行的委托代理人，代理开户行履行还款义务，而由被代理行承担法律责任。所以在诉讼当事人的安排上，原被告仍为储户和开户行，异地取款行仅为无独立请求权的第三人。
二、归责原则
在储蓄合同法律关系中，发卡行负有妥善保管客户账户资金、按照储户需求办理存取款及挂失、为客户保密等义务，储户负有妥善保管存折、储蓄卡及其密码等义务。不法分子“克隆”银行卡导致储户卡内资金被盗，发卡行是否应当承担违约责任？判断违约责任是否成立，以及损害后果如何分配的一个核心问题是违约损害赔偿的归责原则。所谓归责原则，是指基于一定的事由而确立违约责任成立的法律原则，它是确定行为人的违约责任的根据和准绳。学界对合同违约责任的归责原则有三种判断标准 ：过错责任、过错推定和严格责任。
笔者认为，发卡行对于储户卡内资金被盗应承担严格责任。根据我国《合同法》第一百零七条规定的 ：“当事人一方不履行合同义务或者履行合同义务不符合约定的，应当承担继续履行、采取补救措施或者赔偿损失等违约责任。”可见，我国《合同法》在违约责任归责原则上采取了严格责任原则，即除非存在法定免责事由，违约方不论在主观上是否有过错，均应对其违约行为承担违约责任。在严格责任原则之下，违约责任以不履行或者不适当履行合同为构成要件，违约方主观上有无过错，与违约责任无关。合同法分则同时规定对受害方（储户）存在过错的，可以根据其过错大小相应地减轻违约方的责任。在储蓄合同中，银行应该承担向储户提供达到足够安全的交易系统，即银行应保证其服务场所，系统设备的安全使用，足以保障储户信息、密码等信息数据的安全，在储户的信息、密码等信息数据被窃取之后，银行也要能够采取足够的措施保障储户资金安全，谨慎地审核取款人身份。因银行卡未履行信息的安全保障义务和身份审核义务，而造成储户的银行卡资金被犯罪分子盗刷，银行应当对此承担责任，除非存在法定的免责事由，或者银行能够证明储户存在过错。严格责任符合违约责任的本质，因为违约责任在本质上是由合同义务转化而来的，是当事人之间的约定。在一方不履行合同时追究其违约责任，是执行当事人的意愿和约定。基于储蓄合同关系，发卡行的每一次合法付款行为均部分消灭了其对储户的付款债务。而“克隆”卡纠纷恰恰是因为发卡行向“克隆”卡持有人而非真正的储户付款引起的。“克隆”卡持有人冒充储户的身份，持伪造的银行卡及密码从银行处支取卡内存款及利息，具有债权占有人的虚假表像，在债权法上被称为“债权的准占有人”。银行向“克隆”卡持有人支付存款的行为，是对债权准占有人的给付，无论该给付是否存在主观过错，其对储户而言是一种无效给付，发卡行对储户的债务依然存在，发卡行必须应储户的要求向储户还本付息，银行的损失通过追究“克隆”卡持有人的侵权责任来弥补。当然，储户应该尽到妥善保管好银行卡及密码的义务，如果储户没有尽到相应注意义务的过错行为与银行的财产损失之间存在相当程度上的因果关系，可以基于过错相抵原则相应减免银行的还款责任。
三、举证责任分担
举证责任，是指在诉讼中应该由谁来担负提出证据，并用证据来证明事实的责任。在民事诉讼中，“谁主张，谁举证”是举证责任分配的一般原则，当事人对自己的主张有责任提供证据，而举证责任倒置则是这一原则的例外。所谓举证责任倒置，是指在一些特殊案件中，为保证当事人在诉讼中的平等性和审判的公正性，基于法律的规定，提出主张的一方当事人就某种事实不承担举证责任，而由被告证明自己不存在违约或侵权行为，或自己的行为与原告的损失、损害不存在因果关系，如果被告不能就此举证证明，则推定原告的事实主张成立的一种举证责任分配制度。
在“克隆”银行卡案件中，储户和发卡行之间举证责任的分配可以从以下两方面进行具体分析 ：
1.密码泄露的举证责任分配。由于密码在储户设定后由系统对密码进行加密后传输NABIS后台数据库中，具有私有性、唯一性、秘密性的特点。在规范的电子化银行业务自动交易系统中，密码不仅在操作员的计算机中看不出，即使到银行中心机房也无法查到。密码的使用表明对交易者身份的鉴别及对交易内容的确认，从而起到数字签名的功能。因此，密码的使用效力规则为“本人行为原则”，储户对密码负保密、保管义务。在“克隆”银行卡案件中储户应该举证证明其已经履行了对密码的保密、保管义务，对密码的泄漏没有过失。但该原则适用的前提是现有技术可保证密码的使用安全。不法分子通过在自助银行网点门口刷卡处安装读卡器、在柜员机上安装摄像装置的方式窃取储户卡号及密码，这使得银行卡交易的隐私性与安全性大大降低。目前，密码技术尚不够成熟，在其安全性无法得到充分保障的情况下，私人密码使用即为“本人行为原则”的适用应当受到一定的限制。法官可以根据案件的具体情况分配举证责任，而不能机械地在私人密码使用即为本人行为原则下，完全让储户就密码是否泄漏负举证责任。但若储户对密码的保密没有尽到合理的注意义务，如将密码写在信用卡的背面，或将密码随意告诉他人，那么应当由储户承担相应的损失。
2.银行卡真伪的举证责任分配。在“克隆”银行卡案件中，储户只要有证据证明存款被他人支取时自己持有银行卡就已经尽到了举证责任。银行要反驳，必须证明储户持有的银行卡系伪造卡，否则应当就储户被盗取的款项承担违约责任。银行的ATM和柜台计算机系统对银行卡应有识别能力，如果伪卡能够通过银行的计算机系统而交易，可能的解释有两种 ：一是银行卡技术含量太低，容易被别人伪造 ；二是发卡行的计算机系统存在重大缺陷。发卡行对自己签发的如此重要的物品竟然没有能力鉴别其真伪，这无论在法律上还是情理上都是讲不通的。而且ATM和计算机系统无法识别银行卡真伪，以致于向持伪卡的不法分子付款，此时，作为储蓄合同凭证的真银行卡没有用于交易，这是不法分子利用伪卡欺骗商业银行，故不能视作银行与原告成就一笔交易。发卡行因并未履行还款义务而需要承担相应的损失。由于在银行业务中事务数据更多地储存在银行，交易过程的记录基本上由银行制作掌握，银行在交易中处于绝对优势地位，特别是在证据距离的远近上，银行通常更接近于证据，对于待证事实的举证条件和举证能力往往更高。因此，法官在案件审理过程中，受弱者保护的自由心证影响，可能会运用自由裁量权将主要的举证责任分配给银行一方。
四、民事程序和刑事程序的关系
银行卡被盗刷后，如果银行拒绝支付被盗刷的资金，储户可以直接以违约之诉诉至法院，要求银行支付被盗款项，而不必等到刑事案件终结，因为银行卡资金被盗与银行卡被盗刷卡案件涉及的刑事和民事两个法律关系是相互独立的。在刑事法律关系中，储户要求银行支付被盗刷的款项，依据的是双方的储蓄合同权利，与刑事案件没有关系，储户要求银行支付被盗刷的款项，就是要求银行履行合同义务，银行不得以犯罪分子为由拒绝承担责任。因此，银行应当履行储户信息的安全保障义务，建立安全的存取环境，完善业务办理程序。储户也应当妥善保管自己的银行卡帐户和密码，因为储户的故意或重大过失，将银行卡帐户和密码泄露给他人，而使犯罪分子有可趁之机，盗刷银行卡资金的，储户应当对此承担责任。
五、对银行的警示
通过以上分析我们可以看出，“克隆”银行卡案件中，银行违约行为的认定采取严格责任原则，在不能证明储户有过错的情形下应当承担全部赔偿责任。随着犯罪手段的不断高科技化，银行面临的此类风险也日益严重，给自身运营带来了新的安全问题。那么银行应该如何防范此类风险？
首先，银行应该高度重视此类风险的存在，提高防范意识，加强安全保卫措施。只有认识到这种犯罪行为必将给银行带来赔偿储户损害的风险，才会采取更全面、更有效的措施来确保合同的安全保障义务的履行，并且在储户办理银行卡的时候向储户充分履行告知义务，保障储户信息安全，充分预防风险的发生。
其次，银行应尽到合同的安全保障义务，采取多种手段有效防止犯罪嫌疑人的意图得逞。一是加强对自动柜员机安全性的监督管理。自动柜员机作为银行的服务设备，应为储户提供安全的服务，银行对自动柜员机的安全服务环境的提供负有不可推卸的责任。正是因为银行疏于对自动柜员机的管理和监控，才使犯罪分子从容地在自动柜员机上安装相关设备，盗取储户银行卡信息。二是采用先进科技手段，增强识别真伪银行卡的防范技术。在银行卡被复制后，银行因缺乏安全有效的防范技术而无法识别银行卡的真伪，才使得客户的存款被盗取。如果银行电子系统或者柜台工作人员能够识别银行卡的真伪，必将有效避免纠纷的发生。
再次，银行应当建立完善的制度体系来预防和减轻风险，譬如 ：建立健全和完善ATM交易风险准备金及银行责任保险等制度来可以分散风险、 减少损失。风险准备金制度是银行财务工作中为增强银行抵御经营风险的能力而设置的一种手段。 为增强银行抵御ATM业务风险的能力，保障ATM业务经营的持续性，银行应根据业务特点和财务制度的规定，提取和使用ATM风险准备金；此外，银行责任保险是补偿银行损失、转移风险的另一个重要途径，ATM业务存在一定的风险不可避免，责任保险可以有效化解和转移风险。
最后，银行应当加强技术力量，积极推广和使用金融IC卡。金融IC卡是以芯片作为介质的银行卡，将信息全部储存在加密的芯片中，这种卡较少地依赖通讯网络而脱机处理业务，大大提高了银行卡在使用过程中的安全性能，且具有储存功能，被译码和复制的可能性很小。金融IC卡从根本上提高银行卡的安全性。世界各地的实践经验表明，在推广使用金融 IC卡后，“克隆”银行卡案件大幅下降。
On Civil Liability in Cloned Bank Card Cases
By Zhang Yixia (Jiangmen Center Branch of People's Bank of China)
Lin Miao (Jiangmen Center Branch of People's Bank of China)
In recent years, with the rapid development of bank card business, the cases of criminals cloning bank card to steal depositors' funds occur frequently. Criminals usually steal depositors' bank card number and password by installing theft device on ATMs and then counterfeit the bank cards to acquire the fund in the bank card through cash withdrawal, transfer or consumption. Since in practice the bank cards that are “cloned” are mainly debit cards, this article attempts to make a detailed analysis of the legal liability of the parties concerned in the circumstances of debit cards being cloned, and to further explore how banks should guard against such risks.
Ⅰ. The legal relationship between the parties to the bank card
1.The issuing bank and the depositor
The legal relationship of debit card is mainly the civil legal relationship between the issuing bank and the depositor. Unlike credit card which requires repayment after overdraft, before withdrawing cash or paying by debit card, debit card depositors must deposit money first, which is the same with the general savings. Therefore, the relationship between the issuing bank and the depositor is savings contractual relationship. Savings contract is not listed in the contracts regulated in the Contract Law of the People's Republic of China, so it is a kind of unnamed contracts. As to the nature of the savings contract, there are two theories in academia: custody contract theory and loan contract theory. The former does not comply with the basic principles of contract law. According to the Contract Law of the People's Republic of China, custody contract transfers the possession right of the subject matter, but does not transfer ownership, so the custodian must return the original subject matter; while the subject matter of savings contract is a kind of genus. As to genus, except otherwise agreed by the provisions, once one gets the possession of it, one gets its ownership, so the bank simply needs to return the depositor the same type and amount of money, rather than return the original. In other words, monetary possession and ownership are inseparable. In addition, the custodian to the custody contract shall not use the deposit, while the deposit the bank absorbs is the basic tool of its business. Loan contract theory holds that after the depositor deposits money in the bank, the ownership of the money then is transferred to the bank, so the depositor has the creditor's rights to the bank. Bank savings card is essentially a certificate of creditor's rights issued by the bank for the depositor. The savings amount (balance) recorded in the savings card is merely the record of repayment or loan, while the amount of money is actually in the control and possession of the bank. Therefore, the bank has the ownership of the amount of money recorded in the savings card, while the depositor only has the creditor's rights. Since the legal relationship of debit cards is the relationship of savings contract, when criminals steal money from the bank account through “cloning” bank card, the illegal action infringes upon the property rights of the bank. So the bank has the right to require the tortfeasor to bear tort liability for damages, while the savings contractual relationship between the bank and depositor is not affected. In principle, the depositor is still entitled to exercise his creditor's rights to require the bank to pay the principal and interest based on the provisions of the savings contract.
2. Depositors and authorized merchants
When a depositor is doing shopping or receiving services, there is only a general merchandise sales contract relationship between him and the authorized merchant, which is the basis of the bank card transactions, but it is also independent of the bank card transaction relationship. The disputes concerning product quality and service quality based on the contractual relationship between the depositor and the authorized merchant can't be taken as a defense of refusing to pay the money owed to banks.
3. Issuing banks and authorized merchants
There is an agency relationship between issuing banks and authorized merchants, with the banks as the entrusted party and merchants the entrusting party. The banks engage in the transaction settlement with depositors for the authorized merchants based on the agency agreement signed by the banks and the authorized merchants.
4. Debit card issuing banks and teller banks at different places
In addition to debit card issuing banks, deposit withdrawing banks at different places are often involved in practice. With the rapid development of information technology and the Internet, more and more banks have joined China Union Pay, so that most of bank cards can not only have withdrawal transaction in the same banks at different places, but in different banks. As a result, the teller bank may be different from the debit card issuing bank. From the perspective of agency system, the teller bank at a different place is merely the agent of the issuing bank to fulfill the repayment obligation for the issuing bank, so the principal bank shall undertake legal liability. Therefore, the parties to the lawsuit are still the depositor and the issuing bank, while the teller bank at a different place is merely a third party without independent claim right.
Ⅱ.The doctrine of liability fixation
In a legal relationship of savings contract, the issuing bank undertakes the responsibilities of taking good care of the bank account of the depositor, handling deposit and withdrawal transaction as well as loss reporting and client confidentiality, etc. Should the issuing bank undertake the liability for breach of contract when criminals clone bank cards which results in the fund in the depositor's bank card being stolen? The core issue in deciding whether it is breach of contract and how to allocate the consequences of the damage is the doctrine of liability fixation in paying damages for breach of contract. The so-called doctrine of liability fixation is the legal principle that can establish liability for breach of contract based on certain grounds, which is the basis and yardstick for determining the perpetrator's liability for breach of contract. There are three criteria for the doctrine of liability fixation for breach of contract in academia: fault liability, the presumption of fault and strict liability.
The author believes that the issuing bank should undertake strict liability for depositors' funds being stolen. Article 107 of Contract Law of People's Republic of China provides: “If a party fails to perform its obligations under a contract, or rendered non-conforming performance, it shall bear the liabilities for breach of contract by specific performance, cure of non-conforming performance or payment of damages, etc.”
This shows that the principle of strict liability is adopted in terms of the doctrine of liability fixation for breach of contract in Contract Law of People's Republic of China, that is, unless there are statutory exemptions, the defaulting party shall be held liable for breach of contract regardless of whether there is subjective fault. Under the principle of strict liability, the constituent elements of liability for breach of contract are non-performance or improper performance of the contract. Whether the defaulting party has subjective fault or not has nothing to do with the liability for breach of contract. The Specific Provisions of Contract Law provide that where the injured party (depositor) is liable for breach of contract too, the liability of the defaulting party may be reduced accordingly. In a savings contract, the bank should undertake to provide depositors with adequate secure transaction system, that is, the bank should ensure that the system and equipment in its service establishments are secure enough to guarantee the security of the data such as identity information of depositors and password. When the information is stolen, the bank should take sufficient measures to guarantee depositors' fund security, and cautiously check the identity information of the person who withdraws money. If the bank fails to fulfill the duty of security guarantee and depositor identity, which results in the bank card fund being stolen by criminals, the bank should be held liable for this, except that there are statutory exemptions, or the bank can prove that the depositors have fault. Strict liability is in line with the nature of the liability for breach of contract, because the liability for breach of contract, in essence, is transformed from contractual obligations agreed upon by the parties. When one party does not fulfill the contract, to hold him liable for breach of contract is to fulfill the will and agreement of the parties. Based on a savings contractual relationship, every legitimate payment of the issuing bank partly eliminates its payment duty to depositors. The cloned bank card disputes are precisely caused by the issuing bank making payment to the holders of “cloned” bank cards rather than genuine depositors. The holders of “cloned” bank cards pass themselves off as the depositors to withdraw deposit and interest from the bank with forged bank cards and passwords. The holders of “cloned” bank cards pretend to the possessor of creditor's rights, which is called quasi-possessor of creditor's rights in law of obligations. The payment that is made by the bank to the holders of “cloned” bank cards is the one made to quasi-possessors of creditor's rights, so no matter there is subjective fault or not in the payment, it is an invalid payment to the depositors and the issuing bank still has to pay the debt to the depositors by paying principal and interest to the depositors as is required by them. The loss of the bank can be compensated by asking the holders of “cloned” bank cards to be liable for the tort. Of course, depositors should fulfill the duty of taking good care of the bank card and password. If depositors' failure to fulfill the duty of care leads to the corresponding property damage of the bank to a large extent, the bank's repayment obligations may be reduced accordingly based on the principle of contributory negligence.
Ⅲ. Allocation of the burden of proof
The burden of proof means one party to the litigation shall fulfill the duty of presenting evidence and proving the fact with the evidence. In civil proceedings, the principle “he who asserts must prove” is the general principle of allocating the burden of proof. The parties have the responsibility to provide evidence for their claims. Reversing the burden of proof is an exception to this principle. It refers to a system of burden of proof allocation, according to which in some special cases, to ensure equality of the parties in the proceedings and fairness of the trial, based on the law, the party that makes a claim doesn't bear the burden of proof about some fact, but the defendant should prove there is no breach of contract or tort on his part, or there is no causal relationship between his behavior and the plaintiff's loss and damage. If the defendant can't present evidence to prove this, it is presumed that the plaintiff's claim is established.
In the cloned bank card case, the allocation of burden of proof between the issuing bank and depositors can be analyzed from the following two aspects:
1. the allocation of burden of proof of the leakage of passwords. After the password is set by the depositor, it will be encrypted by the system and transmitted to the background database, so it has the characteristics of privacy, uniqueness and secrecy. In the standardized electronic banking automated teller system, the password is both invisible on the operator's computer and undetectable in the center computer room of the bank. Password is used to indicate the identity of the customer and confirm the content of the transaction, which plays the role of a digital signature. Therefore, the rule of password use is “personal behavior principle”, that is, the depositor assumes the obligation of keeping the password confidential and safe. In the case of cloned bank card, the depositor should prove that he has fulfilled the obligation of keeping the password confidential and safe, and has no fault in the leakage of the password. However, the premise of the application of the principle is that the existing technology can ensure the safe use of passwords. Criminals can steal the bank card account number and password by installing a card reader on swipe machine at the entrance of self-service banking outlets or installing a camera on ATMs, which greatly undermines the privacy and security of bank card transactions. Currently, cryptographic techniques are still in the preliminary stage, so when security can't be sufficiently guaranteed, “personal behavior principle” in the use of password should be applied restrictively. The judge may allocate the burden of proof based on specific circumstances of the case, instead of mechanically applying “personal behavior principle” in the use of password and requiring the depositor to bear the burden of proof in the leakage of password. However, if the depositor fails to fulfill a reasonable duty of care in keeping the password confidential, such as writing the password on the back of the credit card, or exposing the password to others freely, then the depositor shall bear the loss accordingly.
2. The allocation of burden of proof of the authenticity of bank card. In the case of cloned bank card, the depositor can fulfill the obligation of burden of proof as long as he can prove that he is in possession of the bank card when the deposit is withdrawn by others. In defense, the bank must prove that the bank card held by the depositor is forged, otherwise, it should be held liable for the breach of contract for the monetary loss of the depositor. ATMs and the computer system on bank counters should be able to identify the bank card. If the forged bank card can finish a transaction through the bank computer system, there are two possible explanations: first, the bank card technology is so poor that the bank card can be forged easily; second, there are significant flaws in the computer system of the issuing bank. It is unacceptable that the issuing bank can't verify the authenticity of the bank card. Because ATMs and computer system can't verify the authenticity of bank cards, the payment is made to the criminals who hold the forged card. But actually, the original bank card as the evidence of the savings contract isn't used in the transaction, so the transaction can't be said to be made between the bank and the plaintiff. The commercial bank is deceived by the criminals with the forged bank card. The issuing bank needs to be liable for the corresponding loss for it fails to fulfill the obligation of repayment. Since most of the business transaction data of the banking transaction is stored in the bank and controlled by it, the bank is in an absolutely dominant position in the transaction. Particularly the bank has more access to the evidence, so it is more capable of presenting the evidence to prove the fact than depositors. Therefore, in the trial of the case, for the sake of protecting the weak, the judge may exercise his discretion to allocate the burden of proof mainly to the bank.
Ⅳ.Civil procedure and criminal procedure
After the bank card is swiped illegally by another person, if the bank refuses to pay the stolen fund, the depositor can directly bring a lawsuit against the bank for breach of contract, requiring the bank to pay the stolen fund without having to wait until the end of the criminal case because the fund in the bank card being stolen and the bank card being stolen are two independent cases involving criminal and civil legal relationships respectively. In criminal legal relationship, the depositor requires the bank to pay the stolen fund based on the savings contract, which has nothing to do with the criminal case. When the depositor requires the bank to pay the stolen fund, he actually requires the bank to fulfill its contractual obligation, so the bank can't refuse to fulfill the obligation because of the criminals. Therefore, banks should fulfill the obligation of keeping depositor information secure, establishing a secure savings and withdrawal environment, and improving the transaction procedure. At the same time, depositors should take good care of their own bank card account and password. If the bank card account and password are leaked to others because of the intent or gross negligence of the depositors, so that criminals take the chance to fraudulently swipe the bank card, the depositors should be liable for this.
Ⅴ. Suggestions for the banks
It can be seen from the above analysis that in the case of cloned bank card, the principle of strict liability is adopted in the establishment of banks' breach of contract, so banks shall be fully liable for the damages when they fail to prove the fault on the side of the depositors. With the development of hightech criminal means, banks are facing increasing risks, which brings new security issues to their operations. Then how can banks prevent such risks?
Firstly, banks should attach great importance to the existence of such risks, raise awareness, and strengthen security measures. Only by realizing that this kind of criminal behaviors will surely bring about the risks of paying the damages of depositors, can banks take more comprehensive and effective measures to ensure the fulfillment of the contractual obligation of safeguarding security and notify depositors of security measures when they handle bank card transaction, so as to safeguard the information security of depositors and prevent risks.
Secondly, banks should fulfill the contractual obligation of safeguarding security, and take various measures to effectively prevent the suspects from achieving their goals. First, banks should strengthen the supervision of ATM safety management. As the banks' service equipment, ATMs shall provide secure services for the depositors. Banks are fully responsible for providing secure service environment of ATMs. The insufficient management and supervision of ATMs by the banks makes it possible for criminals to install equipments on ATMs to steal bank card information of depositors. Second, banks should make use of advanced technological means to enhance prevention technology of identifying the authenticity of bank cards. Due to the lack of secure and effective preventive technology, the banks fail to identify the authenticity of bank cards, so that customers' deposits are stolen. If the electronic banking system or bank counter staff can identify the authenticity of bank cards, it will effectively prevent such disputes from occurring.
Thirdly, banks should establish a sound system to prevent and mitigate risks. For example, the establishment of a sound and comprehensive ATM transaction risk reserve system and bank liability insurance system can spread risks and reduce losses. Risk reserve system is a means to enhance the banks' capacity to fight against operational risks in banks' financial work. To enhance the banks' ability to resist ATM service risks and ensure the continuity of ATM services, the banks should withdraw and use ATM risk reserve based on business characteristics and financial rules. In addition, bank liability insurance is another important means to compensate for bank losses and transfer risks. There are some unavoidable risks in ATM business. Liability insurance can effectively resolve and transfer risks.
Finally, banks should improve technology and actively popularize financial IC cards. Financial IC card is a bank card with a chip as the medium. All the information is stored in an encrypted chip. This kind of cards are less dependent on communication networks and can handle offline operations, so they greatly improve security in the use of bank cards. Besides, they have a storage function. It's unlikely to decode and replicate them. Financial IC cards can fundamentally improve the security of bank cards. The practical experiences around the world indicate that after financial IC cards are popularize, cloned bank card cases have dropped significantly.
(Translated by Zhao Hongfang)
章艺霞（中国人民银行江门市中心支行）
林 妙（中国人民银行江门市中心支行）
近年来，随着银行卡业务的迅速发展，围绕银行自动柜员机出现的不法分子“克隆”银行卡窃取储户资金的案件频频发生。不法分子多通过在银行的自动取款机上加装盗窃装置，窃取储户的银行卡卡号及密码并伪造卡片，通过取现、转账或消费等行为窃取卡内资金。由于在实务中被“克隆”的银行卡主要是借记卡，因此本文试图就借记卡被克隆情形下，相关各方的法律责任做一具体分析，并进一步探讨银行应该如何防范此类风险的产生。
一、银行卡当事人之间的法律关系
（一）发卡行与储户
借记卡法律关系主要是银行卡发卡行和银行卡储户之间的民事法律关系。不同于贷记卡先透支后还款的特点，借记卡储户需先存款，才可支取现金或消费，这与一般的储蓄并无区别，因此，银行卡发卡行与储户之间的关系是储蓄合同关系。储蓄合同不在我国合同法规定的有名合同之列，属无名合同。对于储蓄合同的性质，学界存在保管合同说和借款合同说两种观点。前者不符合合同法的基本原理，根据我国合同法，保管合同转移标的物的占有权，但不转移所有权，所以保管人必须返还原物；而储蓄合同的标的物是货币，属种类物，对于种类物除非通过条款加以特定化，否则一旦被占有即对其拥有所有权，银行只需将同种类、同数量的货币还给存款人即可，无须返还原物。也就是说，货币的占有和所有权是不能分离的。此外，保管合同保管人一方不得使用保管物，而银行吸收的存款是其开展业务的基本工具。借款合同说认为储户将钱存入银行后，这些钱的所有权转移给银行，即储户享有对银行的债权。储蓄卡实质上是银行为储户出具的一种债权凭证，储蓄卡上所记载的款项(余额)，只是还款或借款记录，而该款项实际为银行所控制和占有。因此，储蓄卡上记载款项的所有权属于银行，储户只拥有债权。因借记卡法律关系是储蓄合同关系，当不法分子通过“克隆”银行卡盗取账户资金时，该不法行为侵害的是银行的财产权，银行有权要求侵权行为人承担侵权损害赔偿责任，而银行与储户之间的储蓄合同关系并未受到影响，原则上储户依然有权依据储蓄合同的约定行使债权，要求银行还本付息。
（二）储户与特约商户
储户在购物或接受服务时，与特约商户之间只是一般的商品买卖合同关系，这种关系是银行卡交易的基础，但它又独立于银行卡交易关系，储户和特约商户发生基础合同关系如商品质量、服务质量方面的纠纷，不得作为拒绝支付所欠银行款项的抗辩理由。
（三）发卡行与特约商户
发卡行与特约商户为委托代理关系，银行是受托方，特约商户是委托方，双方通过签订委托代理协议，银行代理商户与储户进行交易结算。
（四）发卡行与异地取款行
除了开户行之外，实践中还经常涉及异地取款行。信息技术与互联网的迅速发展使得越来越多的银行已经加入银联，大多数的银行卡不仅可以同行异地取现，同时还具有跨行交易的功能，这使得被取款的银行和开户行往往不是同一个银行。从代理制度上分析，异地取款行只是开户行的委托代理人，代理开户行履行还款义务，而由被代理行承担法律责任。所以在诉讼当事人的安排上，原被告仍为储户和开户行，异地取款行仅为无独立请求权的第三人。
二、归责原则
在储蓄合同法律关系中，发卡行负有妥善保管客户账户资金、按照储户需求办理存取款及挂失、为客户保密等义务，储户负有妥善保管存折、储蓄卡及其密码等义务。不法分子“克隆”银行卡导致储户卡内资金被盗，发卡行是否应当承担违约责任？判断违约责任是否成立，以及损害后果如何分配的一个核心问题是违约损害赔偿的归责原则。所谓归责原则，是指基于一定的事由而确立违约责任成立的法律原则，它是确定行为人的违约责任的根据和准绳。学界对合同违约责任的归责原则有三种判断标准 ：过错责任、过错推定和严格责任。
笔者认为，发卡行对于储户卡内资金被盗应承担严格责任。根据我国《合同法》第一百零七条规定的 ：“当事人一方不履行合同义务或者履行合同义务不符合约定的，应当承担继续履行、采取补救措施或者赔偿损失等违约责任。”可见，我国《合同法》在违约责任归责原则上采取了严格责任原则，即除非存在法定免责事由，违约方不论在主观上是否有过错，均应对其违约行为承担违约责任。在严格责任原则之下，违约责任以不履行或者不适当履行合同为构成要件，违约方主观上有无过错，与违约责任无关。合同法分则同时规定对受害方（储户）存在过错的，可以根据其过错大小相应地减轻违约方的责任。在储蓄合同中，银行应该承担向储户提供达到足够安全的交易系统，即银行应保证其服务场所，系统设备的安全使用，足以保障储户信息、密码等信息数据的安全，在储户的信息、密码等信息数据被窃取之后，银行也要能够采取足够的措施保障储户资金安全，谨慎地审核取款人身份。因银行卡未履行信息的安全保障义务和身份审核义务，而造成储户的银行卡资金被犯罪分子盗刷，银行应当对此承担责任，除非存在法定的免责事由，或者银行能够证明储户存在过错。严格责任符合违约责任的本质，因为违约责任在本质上是由合同义务转化而来的，是当事人之间的约定。在一方不履行合同时追究其违约责任，是执行当事人的意愿和约定。基于储蓄合同关系，发卡行的每一次合法付款行为均部分消灭了其对储户的付款债务。而“克隆”卡纠纷恰恰是因为发卡行向“克隆”卡持有人而非真正的储户付款引起的。“克隆”卡持有人冒充储户的身份，持伪造的银行卡及密码从银行处支取卡内存款及利息，具有债权占有人的虚假表像，在债权法上被称为“债权的准占有人”。银行向“克隆”卡持有人支付存款的行为，是对债权准占有人的给付，无论该给付是否存在主观过错，其对储户而言是一种无效给付，发卡行对储户的债务依然存在，发卡行必须应储户的要求向储户还本付息，银行的损失通过追究“克隆”卡持有人的侵权责任来弥补。当然，储户应该尽到妥善保管好银行卡及密码的义务，如果储户没有尽到相应注意义务的过错行为与银行的财产损失之间存在相当程度上的因果关系，可以基于过错相抵原则相应减免银行的还款责任。
三、举证责任分担
举证责任，是指在诉讼中应该由谁来担负提出证据，并用证据来证明事实的责任。在民事诉讼中，“谁主张，谁举证”是举证责任分配的一般原则，当事人对自己的主张有责任提供证据，而举证责任倒置则是这一原则的例外。所谓举证责任倒置，是指在一些特殊案件中，为保证当事人在诉讼中的平等性和审判的公正性，基于法律的规定，提出主张的一方当事人就某种事实不承担举证责任，而由被告证明自己不存在违约或侵权行为，或自己的行为与原告的损失、损害不存在因果关系，如果被告不能就此举证证明，则推定原告的事实主张成立的一种举证责任分配制度。
在“克隆”银行卡案件中，储户和发卡行之间举证责任的分配可以从以下两方面进行具体分析 ：
1.密码泄露的举证责任分配。由于密码在储户设定后由系统对密码进行加密后传输NABIS后台数据库中，具有私有性、唯一性、秘密性的特点。在规范的电子化银行业务自动交易系统中，密码不仅在操作员的计算机中看不出，即使到银行中心机房也无法查到。密码的使用表明对交易者身份的鉴别及对交易内容的确认，从而起到数字签名的功能。因此，密码的使用效力规则为“本人行为原则”，储户对密码负保密、保管义务。在“克隆”银行卡案件中储户应该举证证明其已经履行了对密码的保密、保管义务，对密码的泄漏没有过失。但该原则适用的前提是现有技术可保证密码的使用安全。不法分子通过在自助银行网点门口刷卡处安装读卡器、在柜员机上安装摄像装置的方式窃取储户卡号及密码，这使得银行卡交易的隐私性与安全性大大降低。目前，密码技术尚不够成熟，在其安全性无法得到充分保障的情况下，私人密码使用即为“本人行为原则”的适用应当受到一定的限制。法官可以根据案件的具体情况分配举证责任，而不能机械地在私人密码使用即为本人行为原则下，完全让储户就密码是否泄漏负举证责任。但若储户对密码的保密没有尽到合理的注意义务，如将密码写在信用卡的背面，或将密码随意告诉他人，那么应当由储户承担相应的损失。
2.银行卡真伪的举证责任分配。在“克隆”银行卡案件中，储户只要有证据证明存款被他人支取时自己持有银行卡就已经尽到了举证责任。银行要反驳，必须证明储户持有的银行卡系伪造卡，否则应当就储户被盗取的款项承担违约责任。银行的ATM和柜台计算机系统对银行卡应有识别能力，如果伪卡能够通过银行的计算机系统而交易，可能的解释有两种 ：一是银行卡技术含量太低，容易被别人伪造 ；二是发卡行的计算机系统存在重大缺陷。发卡行对自己签发的如此重要的物品竟然没有能力鉴别其真伪，这无论在法律上还是情理上都是讲不通的。而且ATM和计算机系统无法识别银行卡真伪，以致于向持伪卡的不法分子付款，此时，作为储蓄合同凭证的真银行卡没有用于交易，这是不法分子利用伪卡欺骗商业银行，故不能视作银行与原告成就一笔交易。发卡行因并未履行还款义务而需要承担相应的损失。由于在银行业务中事务数据更多地储存在银行，交易过程的记录基本上由银行制作掌握，银行在交易中处于绝对优势地位，特别是在证据距离的远近上，银行通常更接近于证据，对于待证事实的举证条件和举证能力往往更高。因此，法官在案件审理过程中，受弱者保护的自由心证影响，可能会运用自由裁量权将主要的举证责任分配给银行一方。
四、民事程序和刑事程序的关系
银行卡被盗刷后，如果银行拒绝支付被盗刷的资金，储户可以直接以违约之诉诉至法院，要求银行支付被盗款项，而不必等到刑事案件终结，因为银行卡资金被盗与银行卡被盗刷卡案件涉及的刑事和民事两个法律关系是相互独立的。在刑事法律关系中，储户要求银行支付被盗刷的款项，依据的是双方的储蓄合同权利，与刑事案件没有关系，储户要求银行支付被盗刷的款项，就是要求银行履行合同义务，银行不得以犯罪分子为由拒绝承担责任。因此，银行应当履行储户信息的安全保障义务，建立安全的存取环境，完善业务办理程序。储户也应当妥善保管自己的银行卡帐户和密码，因为储户的故意或重大过失，将银行卡帐户和密码泄露给他人，而使犯罪分子有可趁之机，盗刷银行卡资金的，储户应当对此承担责任。
五、对银行的警示
通过以上分析我们可以看出，“克隆”银行卡案件中，银行违约行为的认定采取严格责任原则，在不能证明储户有过错的情形下应当承担全部赔偿责任。随着犯罪手段的不断高科技化，银行面临的此类风险也日益严重，给自身运营带来了新的安全问题。那么银行应该如何防范此类风险？
首先，银行应该高度重视此类风险的存在，提高防范意识，加强安全保卫措施。只有认识到这种犯罪行为必将给银行带来赔偿储户损害的风险，才会采取更全面、更有效的措施来确保合同的安全保障义务的履行，并且在储户办理银行卡的时候向储户充分履行告知义务，保障储户信息安全，充分预防风险的发生。
其次，银行应尽到合同的安全保障义务，采取多种手段有效防止犯罪嫌疑人的意图得逞。一是加强对自动柜员机安全性的监督管理。自动柜员机作为银行的服务设备，应为储户提供安全的服务，银行对自动柜员机的安全服务环境的提供负有不可推卸的责任。正是因为银行疏于对自动柜员机的管理和监控，才使犯罪分子从容地在自动柜员机上安装相关设备，盗取储户银行卡信息。二是采用先进科技手段，增强识别真伪银行卡的防范技术。在银行卡被复制后，银行因缺乏安全有效的防范技术而无法识别银行卡的真伪，才使得客户的存款被盗取。如果银行电子系统或者柜台工作人员能够识别银行卡的真伪，必将有效避免纠纷的发生。
再次，银行应当建立完善的制度体系来预防和减轻风险，譬如 ：建立健全和完善ATM交易风险准备金及银行责任保险等制度来可以分散风险、 减少损失。风险准备金制度是银行财务工作中为增强银行抵御经营风险的能力而设置的一种手段。 为增强银行抵御ATM业务风险的能力，保障ATM业务经营的持续性，银行应根据业务特点和财务制度的规定，提取和使用ATM风险准备金；此外，银行责任保险是补偿银行损失、转移风险的另一个重要途径，ATM业务存在一定的风险不可避免，责任保险可以有效化解和转移风险。
最后，银行应当加强技术力量，积极推广和使用金融IC卡。金融IC卡是以芯片作为介质的银行卡，将信息全部储存在加密的芯片中，这种卡较少地依赖通讯网络而脱机处理业务，大大提高了银行卡在使用过程中的安全性能，且具有储存功能，被译码和复制的可能性很小。金融IC卡从根本上提高银行卡的安全性。世界各地的实践经验表明，在推广使用金融 IC卡后，“克隆”银行卡案件大幅下降。
On Civil Liability in Cloned Bank Card Cases
By Zhang Yixia (Jiangmen Center Branch of People's Bank of China)
Lin Miao (Jiangmen Center Branch of People's Bank of China)
In recent years, with the rapid development of bank card business, the cases of criminals cloning bank card to steal depositors' funds occur frequently. Criminals usually steal depositors' bank card number and password by installing theft device on ATMs and then counterfeit the bank cards to acquire the fund in the bank card through cash withdrawal, transfer or consumption. Since in practice the bank cards that are “cloned” are mainly debit cards, this article attempts to make a detailed analysis of the legal liability of the parties concerned in the circumstances of debit cards being cloned, and to further explore how banks should guard against such risks.
Ⅰ. The legal relationship between the parties to the bank card
1.The issuing bank and the depositor
The legal relationship of debit card is mainly the civil legal relationship between the issuing bank and the depositor. Unlike credit card which requires repayment after overdraft, before withdrawing cash or paying by debit card, debit card depositors must deposit money first, which is the same with the general savings. Therefore, the relationship between the issuing bank and the depositor is savings contractual relationship. Savings contract is not listed in the contracts regulated in the Contract Law of the People's Republic of China, so it is a kind of unnamed contracts. As to the nature of the savings contract, there are two theories in academia: custody contract theory and loan contract theory. The former does not comply with the basic principles of contract law. According to the Contract Law of the People's Republic of China, custody contract transfers the possession right of the subject matter, but does not transfer ownership, so the custodian must return the original subject matter; while the subject matter of savings contract is a kind of genus. As to genus, except otherwise agreed by the provisions, once one gets the possession of it, one gets its ownership, so the bank simply needs to return the depositor the same type and amount of money, rather than return the original. In other words, monetary possession and ownership are inseparable. In addition, the custodian to the custody contract shall not use the deposit, while the deposit the bank absorbs is the basic tool of its business. Loan contract theory holds that after the depositor deposits money in the bank, the ownership of the money then is transferred to the bank, so the depositor has the creditor's rights to the bank. Bank savings card is essentially a certificate of creditor's rights issued by the bank for the depositor. The savings amount (balance) recorded in the savings card is merely the record of repayment or loan, while the amount of money is actually in the control and possession of the bank. Therefore, the bank has the ownership of the amount of money recorded in the savings card, while the depositor only has the creditor's rights. Since the legal relationship of debit cards is the relationship of savings contract, when criminals steal money from the bank account through “cloning” bank card, the illegal action infringes upon the property rights of the bank. So the bank has the right to require the tortfeasor to bear tort liability for damages, while the savings contractual relationship between the bank and depositor is not affected. In principle, the depositor is still entitled to exercise his creditor's rights to require the bank to pay the principal and interest based on the provisions of the savings contract.
2. Depositors and authorized merchants
When a depositor is doing shopping or receiving services, there is only a general merchandise sales contract relationship between him and the authorized merchant, which is the basis of the bank card transactions, but it is also independent of the bank card transaction relationship. The disputes concerning product quality and service quality based on the contractual relationship between the depositor and the authorized merchant can't be taken as a defense of refusing to pay the money owed to banks.
3. Issuing banks and authorized merchants
There is an agency relationship between issuing banks and authorized merchants, with the banks as the entrusted party and merchants the entrusting party. The banks engage in the transaction settlement with depositors for the authorized merchants based on the agency agreement signed by the banks and the authorized merchants.
4. Debit card issuing banks and teller banks at different places
In addition to debit card issuing banks, deposit withdrawing banks at different places are often involved in practice. With the rapid development of information technology and the Internet, more and more banks have joined China Union Pay, so that most of bank cards can not only have withdrawal transaction in the same banks at different places, but in different banks. As a result, the teller bank may be different from the debit card issuing bank. From the perspective of agency system, the teller bank at a different place is merely the agent of the issuing bank to fulfill the repayment obligation for the issuing bank, so the principal bank shall undertake legal liability. Therefore, the parties to the lawsuit are still the depositor and the issuing bank, while the teller bank at a different place is merely a third party without independent claim right.
Ⅱ.The doctrine of liability fixation
In a legal relationship of savings contract, the issuing bank undertakes the responsibilities of taking good care of the bank account of the depositor, handling deposit and withdrawal transaction as well as loss reporting and client confidentiality, etc. Should the issuing bank undertake the liability for breach of contract when criminals clone bank cards which results in the fund in the depositor's bank card being stolen? The core issue in deciding whether it is breach of contract and how to allocate the consequences of the damage is the doctrine of liability fixation in paying damages for breach of contract. The so-called doctrine of liability fixation is the legal principle that can establish liability for breach of contract based on certain grounds, which is the basis and yardstick for determining the perpetrator's liability for breach of contract. There are three criteria for the doctrine of liability fixation for breach of contract in academia: fault liability, the presumption of fault and strict liability.
The author believes that the issuing bank should undertake strict liability for depositors' funds being stolen. Article 107 of Contract Law of People's Republic of China provides: “If a party fails to perform its obligations under a contract, or rendered non-conforming performance, it shall bear the liabilities for breach of contract by specific performance, cure of non-conforming performance or payment of damages, etc.”
This shows that the principle of strict liability is adopted in terms of the doctrine of liability fixation for breach of contract in Contract Law of People's Republic of China, that is, unless there are statutory exemptions, the defaulting party shall be held liable for breach of contract regardless of whether there is subjective fault. Under the principle of strict liability, the constituent elements of liability for breach of contract are non-performance or improper performance of the contract. Whether the defaulting party has subjective fault or not has nothing to do with the liability for breach of contract. The Specific Provisions of Contract Law provide that where the injured party (depositor) is liable for breach of contract too, the liability of the defaulting party may be reduced accordingly. In a savings contract, the bank should undertake to provide depositors with adequate secure transaction system, that is, the bank should ensure that the system and equipment in its service establishments are secure enough to guarantee the security of the data such as identity information of depositors and password. When the information is stolen, the bank should take sufficient measures to guarantee depositors' fund security, and cautiously check the identity information of the person who withdraws money. If the bank fails to fulfill the duty of security guarantee and depositor identity, which results in the bank card fund being stolen by criminals, the bank should be held liable for this, except that there are statutory exemptions, or the bank can prove that the depositors have fault. Strict liability is in line with the nature of the liability for breach of contract, because the liability for breach of contract, in essence, is transformed from contractual obligations agreed upon by the parties. When one party does not fulfill the contract, to hold him liable for breach of contract is to fulfill the will and agreement of the parties. Based on a savings contractual relationship, every legitimate payment of the issuing bank partly eliminates its payment duty to depositors. The cloned bank card disputes are precisely caused by the issuing bank making payment to the holders of “cloned” bank cards rather than genuine depositors. The holders of “cloned” bank cards pass themselves off as the depositors to withdraw deposit and interest from the bank with forged bank cards and passwords. The holders of “cloned” bank cards pretend to the possessor of creditor's rights, which is called quasi-possessor of creditor's rights in law of obligations. The payment that is made by the bank to the holders of “cloned” bank cards is the one made to quasi-possessors of creditor's rights, so no matter there is subjective fault or not in the payment, it is an invalid payment to the depositors and the issuing bank still has to pay the debt to the depositors by paying principal and interest to the depositors as is required by them. The loss of the bank can be compensated by asking the holders of “cloned” bank cards to be liable for the tort. Of course, depositors should fulfill the duty of taking good care of the bank card and password. If depositors' failure to fulfill the duty of care leads to the corresponding property damage of the bank to a large extent, the bank's repayment obligations may be reduced accordingly based on the principle of contributory negligence.
Ⅲ. Allocation of the burden of proof
The burden of proof means one party to the litigation shall fulfill the duty of presenting evidence and proving the fact with the evidence. In civil proceedings, the principle “he who asserts must prove” is the general principle of allocating the burden of proof. The parties have the responsibility to provide evidence for their claims. Reversing the burden of proof is an exception to this principle. It refers to a system of burden of proof allocation, according to which in some special cases, to ensure equality of the parties in the proceedings and fairness of the trial, based on the law, the party that makes a claim doesn't bear the burden of proof about some fact, but the defendant should prove there is no breach of contract or tort on his part, or there is no causal relationship between his behavior and the plaintiff's loss and damage. If the defendant can't present evidence to prove this, it is presumed that the plaintiff's claim is established.
In the cloned bank card case, the allocation of burden of proof between the issuing bank and depositors can be analyzed from the following two aspects:
1. the allocation of burden of proof of the leakage of passwords. After the password is set by the depositor, it will be encrypted by the system and transmitted to the background database, so it has the characteristics of privacy, uniqueness and secrecy. In the standardized electronic banking automated teller system, the password is both invisible on the operator's computer and undetectable in the center computer room of the bank. Password is used to indicate the identity of the customer and confirm the content of the transaction, which plays the role of a digital signature. Therefore, the rule of password use is “personal behavior principle”, that is, the depositor assumes the obligation of keeping the password confidential and safe. In the case of cloned bank card, the depositor should prove that he has fulfilled the obligation of keeping the password confidential and safe, and has no fault in the leakage of the password. However, the premise of the application of the principle is that the existing technology can ensure the safe use of passwords. Criminals can steal the bank card account number and password by installing a card reader on swipe machine at the entrance of self-service banking outlets or installing a camera on ATMs, which greatly undermines the privacy and security of bank card transactions. Currently, cryptographic techniques are still in the preliminary stage, so when security can't be sufficiently guaranteed, “personal behavior principle” in the use of password should be applied restrictively. The judge may allocate the burden of proof based on specific circumstances of the case, instead of mechanically applying “personal behavior principle” in the use of password and requiring the depositor to bear the burden of proof in the leakage of password. However, if the depositor fails to fulfill a reasonable duty of care in keeping the password confidential, such as writing the password on the back of the credit card, or exposing the password to others freely, then the depositor shall bear the loss accordingly.
2. The allocation of burden of proof of the authenticity of bank card. In the case of cloned bank card, the depositor can fulfill the obligation of burden of proof as long as he can prove that he is in possession of the bank card when the deposit is withdrawn by others. In defense, the bank must prove that the bank card held by the depositor is forged, otherwise, it should be held liable for the breach of contract for the monetary loss of the depositor. ATMs and the computer system on bank counters should be able to identify the bank card. If the forged bank card can finish a transaction through the bank computer system, there are two possible explanations: first, the bank card technology is so poor that the bank card can be forged easily; second, there are significant flaws in the computer system of the issuing bank. It is unacceptable that the issuing bank can't verify the authenticity of the bank card. Because ATMs and computer system can't verify the authenticity of bank cards, the payment is made to the criminals who hold the forged card. But actually, the original bank card as the evidence of the savings contract isn't used in the transaction, so the transaction can't be said to be made between the bank and the plaintiff. The commercial bank is deceived by the criminals with the forged bank card. The issuing bank needs to be liable for the corresponding loss for it fails to fulfill the obligation of repayment. Since most of the business transaction data of the banking transaction is stored in the bank and controlled by it, the bank is in an absolutely dominant position in the transaction. Particularly the bank has more access to the evidence, so it is more capable of presenting the evidence to prove the fact than depositors. Therefore, in the trial of the case, for the sake of protecting the weak, the judge may exercise his discretion to allocate the burden of proof mainly to the bank.
Ⅳ.Civil procedure and criminal procedure
After the bank card is swiped illegally by another person, if the bank refuses to pay the stolen fund, the depositor can directly bring a lawsuit against the bank for breach of contract, requiring the bank to pay the stolen fund without having to wait until the end of the criminal case because the fund in the bank card being stolen and the bank card being stolen are two independent cases involving criminal and civil legal relationships respectively. In criminal legal relationship, the depositor requires the bank to pay the stolen fund based on the savings contract, which has nothing to do with the criminal case. When the depositor requires the bank to pay the stolen fund, he actually requires the bank to fulfill its contractual obligation, so the bank can't refuse to fulfill the obligation because of the criminals. Therefore, banks should fulfill the obligation of keeping depositor information secure, establishing a secure savings and withdrawal environment, and improving the transaction procedure. At the same time, depositors should take good care of their own bank card account and password. If the bank card account and password are leaked to others because of the intent or gross negligence of the depositors, so that criminals take the chance to fraudulently swipe the bank card, the depositors should be liable for this.
Ⅴ. Suggestions for the banks
It can be seen from the above analysis that in the case of cloned bank card, the principle of strict liability is adopted in the establishment of banks' breach of contract, so banks shall be fully liable for the damages when they fail to prove the fault on the side of the depositors. With the development of hightech criminal means, banks are facing increasing risks, which brings new security issues to their operations. Then how can banks prevent such risks?
Firstly, banks should attach great importance to the existence of such risks, raise awareness, and strengthen security measures. Only by realizing that this kind of criminal behaviors will surely bring about the risks of paying the damages of depositors, can banks take more comprehensive and effective measures to ensure the fulfillment of the contractual obligation of safeguarding security and notify depositors of security measures when they handle bank card transaction, so as to safeguard the information security of depositors and prevent risks.
Secondly, banks should fulfill the contractual obligation of safeguarding security, and take various measures to effectively prevent the suspects from achieving their goals. First, banks should strengthen the supervision of ATM safety management. As the banks' service equipment, ATMs shall provide secure services for the depositors. Banks are fully responsible for providing secure service environment of ATMs. The insufficient management and supervision of ATMs by the banks makes it possible for criminals to install equipments on ATMs to steal bank card information of depositors. Second, banks should make use of advanced technological means to enhance prevention technology of identifying the authenticity of bank cards. Due to the lack of secure and effective preventive technology, the banks fail to identify the authenticity of bank cards, so that customers' deposits are stolen. If the electronic banking system or bank counter staff can identify the authenticity of bank cards, it will effectively prevent such disputes from occurring.
Thirdly, banks should establish a sound system to prevent and mitigate risks. For example, the establishment of a sound and comprehensive ATM transaction risk reserve system and bank liability insurance system can spread risks and reduce losses. Risk reserve system is a means to enhance the banks' capacity to fight against operational risks in banks' financial work. To enhance the banks' ability to resist ATM service risks and ensure the continuity of ATM services, the banks should withdraw and use ATM risk reserve based on business characteristics and financial rules. In addition, bank liability insurance is another important means to compensate for bank losses and transfer risks. There are some unavoidable risks in ATM business. Liability insurance can effectively resolve and transfer risks.
Finally, banks should improve technology and actively popularize financial IC cards. Financial IC card is a bank card with a chip as the medium. All the information is stored in an encrypted chip. This kind of cards are less dependent on communication networks and can handle offline operations, so they greatly improve security in the use of bank cards. Besides, they have a storage function. It's unlikely to decode and replicate them. Financial IC cards can fundamentally improve the security of bank cards. The practical experiences around the world indicate that after financial IC cards are popularize, cloned bank card cases have dropped significantly.
(Translated by Zhao Hongfang)
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