处理银行卡盗刷纠纷的法理基础及实务要点

对于银行卡盗刷纠纷的法律处理,在迄今为止的司法实践中基本是沿着合同法思路展开。这种惯常思路固然能够给当事人以法律安抚而致银行卡应用实践以法律秩序,但实际上是以耗损效率和弱化公正为代价的。银行卡是代表持卡人财产权利的资格证券,因其使用中权利人识别机制的特点,相关义务人的识别义务、归责模式及免责事由均有本属规则,并非通常合同法规则所能涵盖,如银行卡上的证券关系与据以形成的合同关系相分离,对卡权利人的识别义务与卡的占有状态及持卡人的过错无关等。因此在处理银行卡盗刷纠纷的司法实践中,应当把握银行卡作为权利凭证的法律性质及应用规则,以此作为伪卡盗刷与网络盗刷的本质区别,并由此展开银行卡盗刷案件的情形类别设定及相应处理规则。

Legal Basis and Practical Essentials of Handling Disputes over Fraudulent Use of Bank Card

Regarding the legal handling of disputes over fraudulent use of bank card, so far the judicial practice has been basically carried out along the thinking of contract law. This kind of usual thinking can certainly give legal satisfaction to the parties and maintain the legal order of application of bank card, but it actually comes at the cost of lowering efficiency and weakening fairness. Bank cards are securities of qualification that represent the property rights of cardholders. Due to the characteristics of the identification mechanism of the right holder in use, the obligation of identification of related obligor, the liability models and the cause of exemptions all follow their own rules, which cannot be fully covered by the usual rules of contract law. For example, the securities relationship of the bank card is separated from the contractual relationship based on it;and the identification of the right holder of card has nothing to do with the card’s possession status and the cardholder’s fault. Therefore, in the judicial practice of handling disputes over fraudulent use of bank card, we should grasp the legal nature and application rules of bank card as a certificate of rights, and take them as the bases of the essential difference between the use of fake card and online fraudulent use of card, as well as the bases of the classification of types of case of fraudulent use of bank card and the corresponding handling rules.