Secretly impounding other people's vehicles to collect debts, but the debt was not recovered and compensation was paid

China Court Network News Wang Xia forcibly seized other people's vehicles to collect debts, but the debt was not recovered and compensation was compensated. Recently, the People's Court of Woyang County, Anhui Province ruled in accordance with the law that defendant Wang Xia should return the seized truck to plaintiff Wang Qiang and compensate the plaintiff for economic losses of 3,600 yuan.

On the afternoon of July 21, Wang Xia led people to the construction site to find Wang Qiang, who was pulling bricks, and asked him for the money he owed. Wang Qiang said he had no money at the moment and asked for a few more days of grace. In order to make Wang Qiang take the initiative to repay the money, Wang Xia then forcibly seized the Beijing JB2310P8 truck that Wang Qiang used for operation. Wang Qiang asked others to negotiate several times and asked Wang Xia to return the vehicle, but Wang Xia refused to return it. Wang Qiang had no choice but to take Wang Xia to court.

The court held that citizens’ legal property is protected by law. The defendant Wang Xia had no legal basis and privately seized the plaintiff’s truck for operation, which violated the plaintiff’s legal property rights. The infringement should be stopped immediately and the seized truck be returned. If the defendant's infringement causes losses to the plaintiff, the defendant shall compensate the plaintiff as appropriate. (The names of all the people in the article are pseudonyms)

The unfilial eldest son has no chance to inherit the inheritance and his widowed daughter-in-law inherits all the inheritance

China Court Network News On October 24, the People's Court of Poyang County, Jiangxi Province heard an inheritance dispute case. The old man's biological eldest son failed to fulfill his support obligations and lost the inheritance; the widowed daughter-in-law Jiang Liping received the old man's entire inheritance of 13,000 yuan because she served the old man wholeheartedly.

Zhou Cuiying, an old man in her sixties, gave birth to two sons. The second son Xia Zhiliang gave birth to a boy after marrying Jiang Liping. Soon, Xia Zhiliang died due to a construction accident. The eldest son Xia Zhiming went to a neighboring village to find a bride and worked outside for a long time. He never cared about his biological mother, who was in her sixties. In September 2002, the old man was bedridden due to illness and could not move. Jiang Liping always regarded the old man as her biological mother and served her wholeheartedly, but Xia Zhiming did not even look at the old man.

In March this year, Zhou Cuiying died of illness, leaving behind a deposit of 13,000 yuan. After Xia Zhiming learned about it, he rushed home from other places and forcibly took away Zhou Cuiying's savings and forced Jiang Liping to become a monk. Reluctantly, Jiang Liping took the case to court.

After hearing the case, the court made the above judgment. After the verdict was announced, both parties expressed their acceptance of the verdict.

Case Analysis: Liability Analysis for Stolen Debit Card Deposits

The Bank Should Be Liable

Replay of the Case

January 2003 , Mr. Tang applied for a Jinsui debit card at a branch of the Agricultural Bank of China. In August 2004, when Mr. Tang was using the card to withdraw money, he was told that only RMB 98.90 was left in the card, and the original RMB 360,000 in the card had been transferred. After investigation by the Public Security Bureau, it was found that someone forged Mr. Tang's ID card, applied for a Jinsui debit card in Mr. Tang's name, and then used the bank's telephone transfer service to steal Mr. Tang's deposits and spread them five times that day. Withdraw cash from all five outlets. The case has not yet been solved.

Mr. Tang believes that the bank should be responsible for this matter when he did not apply for the telephone transfer service and ID card, the Jinsui debit card was not lost, and the password was not leaked. In the negotiations with the bank, the bank also believed that it had no responsibility and refused to compensate.

Li Gang (member of the Banking Law Professional Committee of the Beijing Lawyers Association, lawyer at Beijing Guangzhu Law Firm)

Mr. Tang applied for a Jinsui debit card at a branch of the Agricultural Bank of China , then a legal savings contract relationship has been established between Mr. Tang and the bank. In this civil legal relationship, the bank has the obligation to protect the security of Mr. Tang’s deposits, that is, the bank has the obligation to strictly examine relevant certificates and passwords for all bank transactions involving Mr. Tang.

Mr. Tang’s ID card and Jinsui debit card have not been lost, his password has not been leaked, he has not applied for another Jinsui debit card, and he has not applied for telephone transfer services. In this case, the original deposit on the card was transferred and withdrawn. Banks should bear unshirkable responsibility for this.

As a savings institution, a bank's staff should be highly vigilant, carefully examine customers' identity documents, and identify the authenticity of customers' identity documents to protect the safety of depositors' deposits.

It was precisely due to the bank's negligent management and the lax review of relevant staff that the criminal suspect took advantage of it and used the forged ID card of Mr. Tang to successfully apply for another Jinsui debit card in the name of Mr. Tang. Through the telephone transfer service, the deposits in Mr. Tang's Jinsui debit card were transferred.

The criminal suspect's successful application for another Jinsui debit card in the name of Mr. Tang is only a key point in the entire incident. Another key point lies in the password of Mr. Tang's Jinsui debit card. According to the relevant regulations of the Agricultural Bank of China, the telephone transfer service is applicable between two bank cards of the Agricultural Bank of China in the same city. For the transfer to be successful, the password of the transfer card must be provided. That is, if you want to transfer the deposit from Mr. Tang's Jinsui debit card through the telephone transfer service, you must provide Mr. Tang's password. It can be seen that the criminal suspect knows Mr. Tang’s password. As for how the criminal suspect obtained Mr. Tang’s password, no one knows yet. If the bank defends itself by claiming that "Mr. Tang leaked the password himself," it must provide conclusive evidence that Mr. Tang leaked the password himself. If the bank cannot provide evidence to prove that Mr. Tang himself leaked the password, it cannot shirk its responsibility.

Wang Lianggang (Beijing Jingren Law Firm)

After fully studying the "Debit Card Regulations" of each bank, it can be expected that the bank will definitely use the "Debit Card Regulations" Articles of Association" "All transactions with matching passwords will be deemed to be made by the cardholder himself" and "All debit card transactions with matching passwords will be deemed to be legal transactions. Fund losses caused by password loss will be borne by the cardholder." provisions to defend. In similar actual cases, banks have used this as their main defense, and it has become a weapon for cardholders to lose their lawsuits. But the lawyer believes that this defense is untenable.

First of all, in debit card withdrawal (cash withdrawal and transfer) transactions, the password is not the only voucher. In addition to the password, the debit card is also a voucher. When withdrawing large amounts, the ID card is also a voucher. Only using password matching as a requirement for legal transactions will inevitably make withdrawal transactions without cards and certificates legal, greatly reducing the security of deposits.

Secondly, there may be three ways for the password to be lost: first, the cardholder leaks the secret; second, the bank leaks the secret; third, others break the secret. Since there are many ways to lose confidentiality, it is undoubtedly the bank's "overlord clause" to exempt itself from responsibility by stipulating that "the cardholder shall be responsible for the loss" regardless of the circumstances.

Furthermore, the regulation that "all transactions with matching passwords are deemed to be done by the cardholder himself" prevents banks from improving and strengthening the security of debit cards in terms of technology and processes. To identify the authenticity of ID cards, and to fail to fulfill the obligation to reduce or even eliminate forgery and fraudulent debit card transactions as much as possible, the security of debit cards cannot be properly guaranteed.

In addition to the above rebuttals to the bank’s defense, lawyers believe it is also very important to clarify the following two points:

First, the criminal part of such cases is usually characterized as credit card fraud. Since the cardholder's deposits are under the actual control of the bank, the target of the crime is the debit card (the "Debit Card Regulations" and the debit card clearly stipulate that "the ownership of the debit card belongs to the issuing bank" and "the card belongs to the card issuing bank"). The main object of the crime is not the cardholder’s property ownership, but the financial note management system and the bank’s property ownership. Therefore, the bank should not transfer the losses caused by other people’s criminal acts to the cardholder. body.

Second, the cardholder is a consumer receiving bank financial services, and the "Consumer Rights and Interests Protection Law of the People's Republic of China" can be applied to the civil part of this type of case.

Based on the above reasons, the interpretation of the "Debit Card Regulations" and the facts of this case, the bank had the following faults in this case:

1. The bank made the following mistakes in the "Debit Card Regulations" The application form does not specify the telephone transfer function of the debit card, which violates the cardholder’s right to know;

2. The bank sets up telephone transfer services for cardholders on its own, which violates the cardholder’s right to know. The right to choose services;

3. The telephone transfer service set up by the bank enables cardless transfers, which objectively cancels the security function of the debit card itself, and the bank does not fully protect cardholders. Obligations for property security;

4. The bank’s business process of checking ID cards and restricting large cash withdrawals is in vain and fails to fulfill its duty of care.

The bank has no fault and is not responsible

Yang Wenli (Director of the Banking Law Professional Committee of the Beijing Lawyers Association, lawyer at Beijing Weiyu Law Firm)

From this In this case, we learned that Mr. Tang’s deposits on his debit card were transferred to another debit card opened in Mr. Tang’s name and withdrawn using the transfer function of telephone banking. This latter debit card was Someone else used a forged Mr. Tang’s ID card to apply. Under normal circumstances, activating the telephone banking transfer business and making transfers through telephone banking require you to enter the debit card number and password and other relevant information according to the voice prompts of the telephone banking system. How did the criminals obtain Mr. Tang? What about your card number and password? Since the police have not yet solved the case, we don’t know.

Similar cases are common. For example, when a woman used a debit card to withdraw cash from a bank's ATM, she casually threw away the transaction receipt printed by the ATM. This act was actually a crime. Molecule noticed. Therefore, after the lady left, the criminal picked up the transaction receipt and thus obtained the relevant information on the lady's debit card, such as the debit card number. What's more, when a woman entered her transaction password, she was spied on by criminals who had been prepared. Therefore, it is easy for criminals to take advantage of the carelessness of the cashier to obtain the relevant information on the debit card, thereby committing illegal and criminal acts.

According to the relevant provisions of a bank's "Debit Card Regulations": "Cardholders should properly keep their debit card passwords to prevent leaks. All debit card transactions in which passwords are leaked will be regarded as legal transactions. The cardholder shall be responsible for any financial losses caused by the password being compromised.”

Therefore, everyone is reminded that cardholders should take good care of their debit cards when using them. and password to prevent leakage, loss and theft. After applying for a debit card at the bank, the initial password of the debit card should be changed promptly, and the password should be edited scientifically. Try to avoid using passwords such as your birthday and regular numbers that are easy to be deciphered by others. In addition, when withdrawing cash from a bank's ATM machine, you should first observe whether there is any suspicious person near the ATM machine. If you find any suspicious person, you should go to another ATM machine to withdraw money or change it to the bank's counter. After the transaction is completed, the debit card and transaction receipt should be taken away promptly and kept properly. In addition, do not provide your ID card or a copy of your ID card to others at will, as this may give criminals an opportunity to take advantage of you.

In addition, banks only conduct formal examinations of citizens’ ID cards. Banks have no ability to conduct substantive examinations. The authenticity of ID cards should ultimately be identified by the public security organs. Moreover, I think the key to the case is that the criminals obtained Mr. Tang’s card number and password, so that the deposits could be transferred out of Mr. Tang’s debit card. This was the direct cause of the theft of the deposits. Of course, the forged ID card of Mr. Tang was not identified. The bank should improve the skills and technical equipment to identify the authenticity of the ID card to avoid similar incidents.

Although in this case, Mr. Tang has stated that he has never lost or leaked his debit card number, password and ID card to others, according to the principle of who claims the evidence and the General Principles of Civil Law of our country, ", I believe that unless Mr. Tang can provide evidence to prove that the bank had obvious fault in this case of deposit theft, it will be difficult for him to obtain compensation through civil procedures.

Since Mr. Tang has reported the case to the public security organ, and the public security organ has opened a case for investigation, this case is a criminal crime of fraud. The public security organ should be responsible for arresting the criminal, holding him criminally responsible in accordance with the law, and recovering the stolen money. To compensate Mr. Tang for all his losses.

Source: "Legal Daily"

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