The emergence and development of economic law reflect the objective trends and legal requirements of the modern market economy operating model, and indicate the progress of legal civilization. The following is the content of the essay examples on economic law that I have collected for you. You are welcome to read and refer to it! Essay example on economic law Part 1
On the civil legal liability for theft and fraudulent use of credit cards
1. Relevant foreign regulations and the legislation and practice of civil liability for fraudulent use of credit cards in my country
(1) Relevant foreign legislation
1. Relevant regulations in the United States
In some developed capitalist countries in the West, paying attention to protecting the interests of cardholders, that is, consumers, has become an international rule regarding bank cards. In the United States, the provisions on liability for fraudulent use of credit cards are mainly reflected in the Consumer Credit Protection Act and the Honest Credit Act. The Consumer Credit Protection Act stipulates that the card issuer should take measures to identify the authorized user of the credit card, and the credit card issuer bears the burden of proof as to whether the credit card has been used with authorization; the subsequent Honest Credit Act further stipulates that consumers or Cardholders are liable for up to fifty dollars in unauthorized credit card purchases (including if the card is stolen, stolen, or counterfeited). Generally speaking, the relevant provisions of these two bills mainly transfer the risk of fraudulent use to the card issuer, and strictly limit the circumstances in which cardholders or consumers bear risks, which reflects the protection of the interests of the vulnerable party.
(1) Provisions on the attribution of liability for unauthorized allocations.
The definition of "unauthorized transfer" (change all English symbols to Chinese) is: Article 133 of the United States "Honesty Credit Act" refers to the act of stealing or picking up a credit card and then using it. ?Unauthorized transfer?. The so-called unauthorized transfer refers to a transfer initiated by a person other than the credit card holder (consumer) who has not received actual authorization. Funds are transferred from the consumer's account and the consumer does not. Electronic funds transfers that do not benefit from the transfer.
U.S. law stipulates that transactions initiated by consumers using a lost or stolen credit card, including transfers that the consumer is forced to make, are unauthorized transfers. Limitation of Liability.
Limitation of liability for unauthorized transfers: The Electronic Funds Transfer Act and Regulation E and its Official Officer's Note provide that as long as the cardholder has given reasonable notice to the institution, its liability will be limited . And the cardholder's liability for unauthorized transfers is divided into three levels: fifty US dollars, five hundred US dollars and unlimited liability.
The origin of the principle of limitation of liability for unauthorized transfers: The principle of limitation of liability of cardholders established by the Act originated from the 1976 case of First National City Bank v. Morak. In this case, the court held that the defendant was only liable for $50 of the $500 in unauthorized expenditures, relying on federal law, state law, and precedent.
Application of the principle of non-transfer liability: The US Electronic Funds Transfer Act and Regulation E also stipulate that: No matter how obvious the cardholder's negligence is, it does not affect the application of liability limits to him. In In Russen vs First American Bank-Michigan, the court held this view. In this case, the consumer negligently wrote down his ATM card personal PIN on a piece of paper that was placed with the card, and gave the card and PIN to his daughter. Later, his daughter lost both, resulting in unauthorized Loss of authorized transfers. The U.S. court ruled that: This kind of negligence is irrelevant to whether consumers should be held responsible for unauthorized transfers initiated by the discoverer of the card and password, and consumers are not liable for losses caused by such negligence.
Although this provision can easily lead to moral hazard for cardholders, cardholders may falsely claim that a transaction was not authorized by them to obtain improper benefits. However, the basis for U.S. law to make this provision is the belief that the vast majority of cardholders are honest. Of course, this trust is based on a huge credit reporting system.
The law also believes that card-issuing banks should be aware of the risks of credit cards before issuing credit cards, and are obliged to investigate the credit status of applicants before issuing cards. Credit cards should be issued to creditworthy people. Moreover, the crime of credit card fraud in criminal law can also effectively overcome the occurrence of this kind of moral hazard.
(2) Regulations on the burden of proof
The Consumer Credit Protection Act passed by the U.S. Congress stipulates that the issuer of a credit card bears the burden of proof as to whether the credit card has been authorized for use. The "Honesty Credit Act" stipulates that if the card issuer requires the cardholder to bear liability of up to fifty US dollars, there is a further burden of proof, that is, it must prove that the unauthorized use of the credit card must meet other requirements stipulated by law, specifically: The cardholder has accepted the credit card; the card issuer has notified the cardholder of potential liability; the card issuer has provided the cardholder with instructions on how to notify the issuer if the credit card is lost or stolen; unauthorized use Occurs before the cardholder has notified the credit card issuer of a loss, theft, or other event; the credit card issuer has provided a method by which the user of a credit card can be identified as unauthorized.
This reversal of the burden of proof allows vulnerable cardholders to avoid taking risks due to inability to provide evidence, and for card issuers with strong technical support and advanced equipment, this also Instead of increasing the burden on them, it will help them proactively take measures to maintain the security of cardholders.
(3) The stipulation that consumers bear full responsibility?
Card issuers in the United States generally agree with cardholders that in the following circumstances, the cardholder will still be responsible for the loss even after reporting the loss. Risk responsibilities should be borne by: a third party pretends to be the cardholder's permission or intentionally hands over the credit card to the user; the cardholder intentionally uses the automated equipment to advance cash or conduct other transactions with the transaction password or other identification of the cardholder. Notifying a third party in a sexual manner; the cardholder and a third party or a special store making false transactions or conspiring to commit fraud, etc. The provisions of the above-mentioned exception clauses are not incomplete, but also quite reasonable and operable, emphasizing the cardholder's duty of prudence when keeping and using credit cards.
2. Relevant regulations of other countries and regions
(1) Relevant regulations of the United Kingdom. The "Bank Operating Rules" formulated by the British Association of Bankers and requiring bank members to abide by it stipulates that unless the issuing bank proves that the cardholder committed fraud or failed to use various bank cards with reasonable caution, the credit card will be lost or stolen. The cardholder's liability for losses incurred before the cardholder reports the loss is up to a maximum of fifty pounds.
(2) Relevant regulations of South Korea. Article 2, Paragraph 3 of South Korea's "Specialized Financial Industry Act" stipulates: The card issuer shall be responsible for all losses caused to the cardholder from the time it receives the cardholder's request to report the loss.
(3) Relevant regulations in Australia. Australia's "Electronic Funds Transfer Guidance Act" also stipulates the liability of consumers for unauthorized transfers: in the absence of fraud and gross negligence on the part of the account holder, the liability for unauthorized transfers is only one hundred fifty yuan or the account. Actual losses incurred when the balance or account institution is notified that the access method has been misused, lost or stolen, or the security of the password that is part of the access method is compromised.
(2) Current legislation on theft and fraudulent use of credit cards in my country
The laws, regulations and judicial interpretations that regulate credit cards in my country’s current legal system include: "General Principles of Civil Law" in the Civil and Commercial Law Department ", "Opinions of the Supreme People's Court on Several Issues Concerning the Implementation of the General Principles of the People's Republic of China and the Civil Law (Trial)", a few provisions in the "Contract Law" and the "Guarantee Law"; in the Economic Law Department Some relevant provisions in the "People's Bank of China Law", "Commercial Bank Law", "Consumer Rights Protection Law" and other laws.
The only professional regulations that regulate the legal relationships and practical operations of credit cards are departmental regulations, which mainly include: the "Bank Card Business Management Measures" issued by the People's Bank of China (?Central Bank?) that came into effect on March 1, 1999, and the "Bank Card Business Management Measures" issued by the People's Bank of China (? Central Bank?) on October 26, 2005. The "Electronic Payment Guidelines (No. 1)" promulgated and implemented by the central bank on July 9, 2001, and the "Interim Measures for the Management of Online Banking Business" promulgated and implemented by the central bank on July 9, 2001 were announced by the China Banking Regulatory Commission on January 26, 2006 and implemented in March. The "Electronic Banking Business Management Measures" officially implemented on January 1st have only a few provisions stipulating liability for fraudulent use of credit cards.
At present, there are no special laws or administrative regulations in our country. There are only departmental regulations of the People's Bank of China. The "Measures for the Administration of Bank Card Business" stipulates the legal liability for fraudulent use of credit cards. Paragraph 5 of Article 52 of the Law stipulates: The card-issuing bank shall provide bank card loss reporting services to cardholders, and shall set up a 24-hour loss reporting service hotline, providing both telephone and written loss reporting methods. Written loss reporting shall be the official loss reporting method. . And the responsibilities between the card-issuing bank and the cardholder for loss reporting should be clarified in the articles of association or relevant agreements. According to this provision, when the cardholder loses his or her credit card, the card-issuing bank's obligation is to provide the cardholder with loss-reporting services. However, in this article about the "obligations" of the card-issuing bank, the People's Bank of China has granted the card-issuing bank the right to formulate its own liability clauses for fraudulent use of credit cards in its charter or agreement. Therefore, the current legal liability for fraudulent use and loss reporting of credit cards mainly comes from the regulations and practices of various commercial banks in my country.
(3) Regulations and Practices of Commercial Banks in my country
The new version of the "Electronic Banking Regulations" implemented by the Industrial and Commercial Bank of China on June 1, 2009 stipulates that losses before the loss of a credit card is officially reported It is up to the customer. It is the first time in the banking industry that banks will not be held responsible for losses caused by customers' failure to fulfill their risk prevention obligations.
Bank of China stipulates that credit card losses must be reported over the phone for immediate effect. Bank of China's BOC Credit Card, BOC Metropolis Card, and BOC VISA Olympic Credit Card implement zero risk reporting measures. After your credit card is lost or stolen, you only need to call the 24-hour customer service hotline. Once the loss is reported, you do not need to bear the risk after the loss is reported.
Last year, China Guangfa Bank took the lead in launching the country’s first 48-hour card loss protection plan before reporting a loss. This 48-hour card loss protection function can effectively reduce the losses caused by failure to detect the loss of a credit card in time. It more comprehensively protects the interests of credit card holders and the security of card use, but this protection measure does not include transactions requiring the use of passwords such as ATM machines and online payments.
China Merchants Bank launched the "Lost Card Protection" function in April 2006, only one month later than China Guangdong Development Bank. That is, any theft losses that occur within 48 hours before the loss is reported will be borne by the bank. Among them, the maximum annual compensation per person for ordinary cards is 10,000 yuan, for gold cards it is 15,000 yuan, and for platinum cards it is all-inclusive according to the customer's credit limit.
The "Bank of Communications Pacific Personal Credit Card Use Contract" stipulates that if the cardholder forgets his password or loses his Pacific Card, under special circumstances, the bank will not bear any responsibility, and the loss will be borne by the cardholder, such as All transactions conducted using the password before the password was reset, etc. In addition, the bank shall bear the responsibility for the risk of misuse after the loss is reported.
The "China Construction Bank Long Card Credit Card Use Agreement" stipulates that in the event of a credit card being lost or stolen, the cardholder should immediately report the loss. After the loss report takes effect, any damage that occurs that is not caused intentionally by the cardholder Debts and losses are no longer the responsibility of the cardholder. Summarizing the above regulations and practices of various banks regarding credit card loss reporting, it can be seen that the regulations on liability for fraudulent use of credit cards by various banks in my country include the following two situations: After reporting the loss, the risk of fraudulent use of the credit card shall be borne by the bank, unless there is an exemption. ; Before reporting the loss, most banks stipulate that the cardholder shall bear the responsibility for the fraudulent use of the credit card. Currently, only a few banks, such as China Guangdong Development Bank and China Merchants Bank, bear part or even all of the liability for the fraudulent use of the credit card within 48 hours after the loss is reported. .
In judicial practice, there have been disputes over liability between cardholders and card-issuing banks regarding the loss or theft of their bank cards. The courts have generally supported the banks’ claims and ruled that consumers should bear all losses incurred before reporting the loss.
2. Shortcomings in my country’s current legislation
(2) my country’s current legislative provisions
This article believes that there are serious deficiencies in my country’s current legislation on credit card legal liability. , mainly manifested in the following aspects:
(1) The standard for defining the risk of fraudulent use is too simple
The relevant provisions of our country’s laws on the risk liability for reporting the loss of credit cards are based on whether to report the loss As a determining factor in measuring whether the cardholder bears liability, the obligation to share the risk of credit card loss is changed from a legal obligation to a contractual obligation without any provisions on the cardholder limit, which expands the possibility of banks requiring cardholders to assume liability. The simplification of the premise of risk liability makes it impossible for the legislation to meaningfully divide complex risk situations, and cannot subdivide the responsibilities of the parties based on the loss of the credit card and the degree of fault of the cardholder and the card issuer.
(2) The responsibilities imposed on cardholders are too heavy
After the card issuer issues a credit card based on the cardholder’s application, the cardholder has absolute control over the credit card. , should fulfill the obligation to properly keep the credit card. In the event that the card is lost due to the cardholder's fault and losses due to fraudulent use occur, the cardholder shall bear corresponding responsibilities within a certain scope. But this does not mean that once the credit card is lost, losses will inevitably occur. Loss of the card is not a sufficient condition for loss, because credit card consumption is different from cash consumption. Its discontinuity in time and space requires the cardholder to be involved in the credit card transaction. , the card issuing bank, and the special merchants work closely with each other. When a cardholder loses his or her card, as long as the card issuer and specially appointed merchants can fully fulfill their corresponding obligations, it is usually difficult for criminals to achieve the purpose of fraudulent use. Therefore, the risk of fraudulent use before a credit card is reported as lost should be reasonably allocated among the cardholder, the card issuer, and the special merchant based on the type and degree of fault in creating the risk of fraudulent use, rather than imposing all such risks. It is the sole responsibility of the cardholder. However, judging from the current provisions in the credit card regulations and credit card acceptance agreements of various card issuers in my country, most card issuers still stipulate that the losses before the credit card is reported as lost shall be borne by the cardholder himself. This approach is very unreasonable.
(3) The responsibilities imposed on banks are too light
From the perspective of the system of the "Bank Card Management Measures", the relevant responsibilities for fraudulent use of credit cards are stipulated in Article 52 Among the obligations of the card-issuing bank, as mentioned above, this provision actually grants the card-issuing bank great rights and stipulates the rights in the obligations. This is obviously a legislative contradiction, which has also led to the major banks to In their respective charters or agreements, expand the scope of cardholders' responsibilities and reduce the bank's responsibilities therein.
From a legal point of view, it is unfair and unjust to hand over the responsibilities of the weaker party to the stronger party between two entities with extremely disparity in economic strength, and it will inevitably have negative consequences for cardholders. caused great harm to the rights and interests of the people. Although the relationship between the card issuing bank and the cardholder is an equal contractual relationship, it is usually regulated by contract law. However, the relationship between card-issuing banks and consumers (i.e. cardholders) is essentially unequal. This inequality is not only reflected in the huge gap in economic strength between the two, but also in the financial institutions dominated by banks. It has the privileges granted by law, that is, industry monopoly rights. This obviously violates the principle of fairness in civil law and causes the cardholder to bear excessive risks. The cardholder may have to bear losses that are not caused by his fault. This also violates the principle of negligence liability.
In addition, from the analysis of the manifestations and reasons of fraudulent use of credit cards, it is not difficult to find that the main reasons for fraudulent use of credit cards lie in two aspects.
The first is the technical level. Compared with today’s high-tech and highly intelligent crimes, the anti-counterfeiting and anti-theft equipment and technologies of card issuers and special merchants still have many loopholes. The second is the human level, which is mainly reflected in the professional quality of the staff of card issuers and special merchants. Not high, the procedures are not standardized, and the cardholder does not keep the credit card carefully. Paragraph 5 of Article 52 of the "Bank Card Business Management Measures" obviously simplifies the situation of fraudulent use, and even completely transfers the bank's own risk of fraudulent use due to technical problems to cardholders who have no fault at all. Unreasonable.
3. Legislative suggestions for improving my country’s civil liability for fraudulent use of credit cards
Because China’s current credit mechanism that supports the risk operation of credit card loss reports has not yet been perfected. Therefore, if China wants to succeed in the field of credit cards, it must neither copy European and American models nor copy Taiwan's experience. Instead, it must formulate corresponding laws and regulations based on China's traditional national habits and learn from good international legislative techniques. Only by forming your own model can the rights and interests of credit card consumers be well protected.
(1) Promulgate the "Credit Card Regulations" as early as possible
On April 24, 2005, the People's Bank of China, the National Development and Reform Commission, the Ministry of Public Security, the Ministry of Finance, the Ministry of Information Industry, the Ministry of Commerce, and the Taxation The "Several Opinions on Promoting the Development of the Bank Card Industry" jointly issued by the State Administration, the China Banking Regulatory Commission and the State Administration of Foreign Exchange put forward the idea of ??drafting the "Bank Card Regulations". Although this means that in future legislative planning, bank credit card business will still be subject to legislative adjustments together with other bank card businesses such as debit cards as a whole, but this is after all a major progress in the credit card-specific legislation. The proposal of the "Bank Card Regulations" raised the main legal basis for regulating credit card business from the departmental regulations and "Measures for the Administration of Bank Card Business" formulated by the People's Bank of China to the administrative norms formulated and promulgated by the State Council, making it highly effective in terms of law. As for other regulations and policies related to credit cards, they have initially formed a core in the system of special laws and regulations regulating the credit card business. The improvement of the legislative level can also ensure to a certain extent that the content of this administrative regulation transcends the narrow departmental interests of financial institutions and affects The legitimate rights and interests of credit card parties are given fair legal protection. At the same time, supporting laws and regulations for credit cards should also be improved, a sample credit card contract should be promulgated, and the protection of the rights and interests of credit card consumers should be strengthened.
(2) Make it clear that the bank will bear the losses caused by fraudulent use after the loss is reported
The main reason why the credit card is still used fraudulently after the loss is reported is because the person who reported the loss reported the loss and the issuing bank informed the special merchants There is often a time lag between issuance of stop payment lists. The existence of the time difference is caused by insufficiently advanced technical means and defects. When banks issue credit cards and open credit card business, they should take into account possible risks, take corresponding management measures, and provide corresponding and sound technical support to reduce or even eliminate risks. This is the bank's obligation. At the same time, the possibility of solving the risk of fraudulent use after reporting a loss lies in the improvement of bank technology and business level. Only banks can effectively prevent risks from occurring. As a credit card holder, there is nothing you can do about it. Therefore, the bank should bear the losses caused by fraudulent use after the loss is reported.
(3) Clarify the liability for losses caused by fraudulent use 24 hours before reporting the loss
There is often a time lag between when the credit card is out of the control of the cardholder and when the loss is reported and payment is stopped, and the risk Employers often take advantage of this time difference to infringe on the property ownership of cardholders. Therefore, it is particularly important to make specific provisions on liability for fraudulent use during this period. Moreover, the author believes that twenty-four hours is a more suitable time period. If the specified time is too long, such as Guangdong Development Bank’s forty-eight hours or even longer, it will easily cause cardholders to be lazy in reporting losses, which may lead to further expansion of losses. . Specifying the attribution of responsibilities within 24 hours can, on the one hand, urge cardholders to fulfill their obligation to report loss in a timely manner, and on the other hand, it can also well protect the interests of cardholders. The author believes that during these 24 hours, the cardholder should bear the limit of liability, the special merchant shall bear the liability corresponding to its fault, and the bank shall bear the remaining liability.
1. Conditions and limits of liability for the cardholder’s liability
The cardholder has the obligation to properly keep the credit card. When the card falls into the hands of others due to the cardholder’s own negligence, If you withdraw cash or overdraft at will, the cardholder shall bear the unshirkable responsibility for the consequences. Therefore, in principle, the cardholder should bear certain responsibility for the losses before the loss is reported. Regarding the legal cardholder's responsibility after losing the card and before reporting the loss, it is reasonable for the legal cardholder to bear part of the responsibility, because it failed to perform its custody obligations, and if the liability before reporting the loss is fully borne by the card issuer or special merchant, It will undoubtedly induce moral hazard among consumers and increase instability factors in the field of financial consumption.
2. Make it clear that the burden of proof lies with the bank
The author believes that the fairest solution to the liability for fraudulent use of credit cards is to adopt the principle of negligence and reverse the burden of proof, leaving it to the financial The institution bears the burden of proof; the cardholder is only liable within the liability limit for its gross negligence, and the liability for other losses is borne by the financial institution. The financial institution can transfer the risk through insurance to an insurance agency, and the cost is much lower than that of the cardholder.
The losses caused by the bank can be transferred to the insurance institution. This refers to a form in which card issuers purchase insurance from insurance companies and are compensated by insurance companies when risk losses occur, thereby avoiding or reducing actual losses. As a risk management strategy, insurance has a long history in financial risk management. As early as the 1930s, after the Great Depression, the United States began a deposit insurance system. Nowadays, credit card risk management is increasingly used, and it is an important means to spread risks and compensate for losses. Card issuers can obtain timely and satisfactory compensation for some unpredictable unexpected losses in credit card business through the expenditure of a small amount of insurance premiums, thereby reducing or reducing risks, which is very economical for card issuers.
In addition, the basis for recording transactions between banks and customers in electronic funds transfer is transaction data. Compared with paper documents recorded in traditional banking business transactions, it has two characteristics: First, transaction data All are stored in the bank's server, and the records of the transaction process are completely produced and controlled by the bank. The bank has an absolute advantage in the transaction, and the customer does not have any backup of the transaction data. Secondly, electronic data is easy to tamper with and can be used by speculators. The possibility is extremely high. The particularity of this kind of transaction makes the principle of proof in civil litigation such as "who claims and who must provide evidence" cannot be applied to electronic banking disputes between banks and customers. In order to avoid this unreasonable practice of requiring the cardholder to provide evidence because the card-issuing bank has all the original evidence materials but the cardholder does not, our country's legislation should clarify the bank's burden of proof in the loss sharing rules.
(4) Clarify the responsibilities that banks should bear
Legislation should clarify the responsibilities of banks: bear substantive review obligations for credit cards, otherwise they will bear corresponding fault liability. It shall be responsible for formal examination of identity documents, otherwise it shall bear corresponding fault liability.
When a credit card is used fraudulently, the card issuer must bear this responsibility, even the main responsibility, no matter what the circumstances. This is not unfair to card issuers. Judging from the credit card contract between the card issuer and the cardholder, the card issuer is not only the institution that issues the credit card, but also has the obligation to ensure the safe use of the card by the cardholder after the card is issued. From a technical perspective, card issuers have advanced equipment and professional technical personnel, and can better defend against the risk of fraudulent use of credit cards. On the other hand, transferring the risk of fraudulent use mainly to card issuers will also help them strengthen security technology, speed up equipment updates, and continuously improve service levels. From the perspective of the convenience of risk avoidance, card issuers with strong economic strength can transfer the risk of fraudulent use to insurance companies by introducing insurance mechanisms to effectively reduce the losses of both banks and customers.
1. Banks should bear the obligation to substantively review credit cards, otherwise they will bear corresponding fault liability.
The bank's review of the authenticity of credit cards should be a substantive review rather than a formal review. Banks should fulfill their absolute review obligations for the credit cards they issue. It would be particularly unfair to depositors if banks are allowed to only perform formal review obligations on credit cards and be exempted from the obligation to pay interest under real credit cards because they have completed formal review obligations. Therefore, from the perspective of balancing the interests of banks and depositors, it is necessary for banks to assume the obligation to substantively review bank cards.
The "Industrial and Commercial Bank of China's Measures for the Management of Overseas Deposit and Redemption Business" stipulates that tellers check whether the card accepted is a Peony Money Link card from a bank that has opened inter-local deposit and redemption business, and whether the card is tested, corners cut, Is it damaged or altered? Is there the word "Prototype Card"? From this statement, ICBC stipulates that it only conducts a formal review of the Peony Money Link Card. This view of the bank is supported by the court's judgment. The Beijing Haidian District People's Court held that counter personnel can only conduct general formal review of the material, style, color, etc. of cards and ID documents with their naked eyes and work experience. For For other subtle differences that can only be identified by precision instruments, banks cannot bear the responsibility for identification. This view has also become a view consistently advocated by banks.
However, from the perspective of the rights and obligations of the parties involved in the credit card contract, we need to doubt the rationality of this determination. A credit card is issued by a bank, proving the existence of a credit card contractual relationship, and its authenticity is required by the general principles of contract law. Identification of the authenticity of the credit card is one of the prerequisites for determining the authenticity of the credit card contract relationship, and also lays the foundation for the bank to identify the cardholder's identity in the next step. Fake credit cards do not represent real credit card contractual relationships. The bank's identification of the authenticity of the credit card is the first and most basic prerequisite for it to fulfill its payment obligations. The act of making external payments with a fake credit card should not eliminate the bank's payment and interest obligations based on the real credit card contractual relationship. In this sense, the author believes that banks’ review of the authenticity of credit cards should be a substantive review rather than a formal review. Banks should fulfill their absolute review obligations for credit cards issued by themselves.
2. The bank shall be responsible for formal examination of identity documents, otherwise it shall bear corresponding fault liability. There is no legal basis for requiring banks to bear substantive review responsibilities for identity documents, and it is also unrealistic. The reason is that providing true and valid documents to financial institutions is a legal requirement for parties opening accounts. The "Real-Name System for Personal Deposit Accounts" Article 6 of the Provisions clearly stipulates this; in addition, from the perspective of the practical feasibility of bank operations, financial institutions can only conduct a formal review of the authenticity and validity of the certificates provided by the parties and are unable to conduct substantive Review, because the financial institution itself is not the appraisal agency for the authenticity of the document, and it has no right to make appraisal conclusions.
Confirmation of identity is an important link, which is the prerequisite for the bank to fulfill its payment and interest payment obligations. Some scholars believe that banks should bear the responsibility for substantive examination of identity documents. They believe that, between banks and cardholders, banks, as businessmen in the field of commercial law, have relatively strong professional identification and identification capabilities, business risk prevention and assuming capabilities, while cardholders are relatively weak in these aspects. What's more, in the process of being fraudulently claimed, the cardholder is in a completely passive position. As a participant, the bank should have more active obligations. The bank cannot justify the wrong payment because it cannot prove the authenticity of the ID card. The consequences are passed on to the cardholder. Banks can only continuously improve their working methods in response to emerging problems, strengthen the sense of responsibility of staff, ensure correct payment of cardholders' money, and ensure that the legitimate rights and interests of cardholders are realized. Only in this way can the bank's reputation be maintained and its own development promoted. ?
However, the author believes that banks are neither the issuing authority for ID cards nor an appraisal department with professional appraisal functions. Objectively, they do not have the specialized skills and personnel to judge the authenticity of ID documents.
If the bank conducts a substantive examination of the identity card of the party reporting the loss to verify the identity, there is no legal basis. Neither the person reporting the loss nor the issuing authority has the legal obligation to cooperate and assist. At the same time, they lack the necessary facilities, professional skills and effective way, but ultimately unachievable.
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