Bank Legal Risks in ATM Savings Contract Disputes

Abstract: In recent years, among the disputes of automatic teller machine (ATM) savings contract, judicial practice and relevant judicial interpretations and judicial guidance have increased the bank's contractual obligations and the burden of proof, which is embodied in the bank's responsibility for the safe operation of automatic teller machines and the performance of bank's accompanying obligations such as reasonable reminders to customers. In this regard, banks should avoid such legal risks by improving the operational security level of ATMs themselves, establishing relevant technical standards and improving relevant contracts.

Keywords: ATM Savings Contract Disputes Burden of Proof Attached Obligations.

In recent years, disputes over savings contracts caused by ATMs are common, the number of cases is on the rise, and the content of disputes is also showing a trend of diversification. at the same time, the corresponding trial examples and relevant judicial interpretations also show a trend of increasing bank obligations and strict bank burden of proof, so this kind of cases can be said to be risky for banks, which should be paid enough attention.

As an important extension of the bank's counter business, automatic teller machines (ATMs) can provide customers with 24-hour uninterrupted deposit and withdrawal services, and in order to alleviate the pressure on the counter, banks generally tend to add relevant outlets and deploy more and more intensively. ATM machines in order to better facilitate depositors. In recent years, disputes over savings contracts caused by ATM machines are common, the number of cases is on the rise, and the content of disputes is also showing a trend of diversification. at the same time, the corresponding trial examples and related judicial interpretations also show a trend of increasing bank obligations and strict bank burden of proof, so this field should also become an important "protection area" for bank risk prevention ".

Introduction to 1.-related cases

On March 20, 2006, the plaintiff Chen Mou handled a personal settlement account current deposit passbook in a branch of a commercial bank in a certain city of the defendant. From September 6 to September 9, 2008, the account deposit was withdrawn and transferred out of a total of 77100 yuan with a withdrawal card on a remote ATM. Chen Mou found that the deposit was taken and reported to the police, but the case has not been solved so far. The passbook and credit card are always held by the plaintiff himself. According to the monitoring video data of the bank ATM machine, the withdrawal person operating on the ATM machine is not the plaintiff himself. The card used by the withdrawal person and the card held by the plaintiff are obviously different in appearance characteristics.

Plaintiff Chen Mou believed that the theft of the deposit was caused by the defendant's mistake in safekeeping. The defendant had serious fault and should repay the plaintiff the stolen money and compensate for the loss of interest. He requested the defendant to repay the plaintiff 77100 yuan and interest. The defendant argued: 1. The case is suspected of economic crimes, and the facts involved have been filed for investigation by the Public Security Bureau, so Chen's lawsuit should be rejected or the trial should be suspended; 2. The theft of the plaintiff's funds is only one of the possible reasons for the transaction settlement result, There may be other reasons (such as entrusted withdrawal, private lending, etc.), and the latter does not constitute the plaintiff's financial loss, therefore, there is still no sufficient evidence to prove the result of the plaintiff's financial loss; 3. The defendant does not have a breach of contract, and there is no causal connection between the defendant's behavior and the result of Chen's financial loss, so he should not be liable for compensation, and the plaintiff's claim should be rejected. The defendant requested the suspension of the case or the dismissal of the plaintiff's claim.

The court of first instance held that this case was a dispute over a savings deposit contract between the plaintiff Chen and the defendant's commercial bank. Although the thief's behavior has been suspected of a crime, there is no evidence to prove that the plaintiff is suspected of participating. The savings deposit contract relationship in this case is different from the suspected crime. Therefore, it is not necessary to apply the principle of punishment before the people, and it is ruled to suspend the trial or reject the prosecution. In this case, according to the surveillance video, it can be presumed that the operator is holding a forged bank card to withdraw or transfer money and the ATM machine cannot identify it. As a commercial bank, the defendant is obliged to ensure the safety of the plaintiff's deposits in accordance with the contract, and according to the principle that the benefits and risks are consistent, it should be liable for breach of contract for property losses caused by the system's failure to identify the authenticity of the card. The defendant shall bear the burden of proof for the plaintiff's breach of contract or malicious withdrawal, but the defendant has no corresponding evidence to prove the existence of such circumstances. Therefore, in order to safeguard the legitimate rights and interests of the plaintiff and the social credibility of the defendant, the defendant should bear all the liability for breach of contract for the property losses caused by the system's failure to identify the authenticity card. At the same time, the operation behavior that has occurred on the ATM can not be determined to be the real transaction between the plaintiff and the defendant. The defendant has the obligation to pay the plaintiff's deposit. In May 2010, the court of first instance ruled that the defendant should pay the plaintiff Chen's deposit of 77100 yuan and interest on the date of the legal effect of the judgment. The interest is calculated according to the current deposit interest rate of the same period issued by the people's Bank of China. After the judgment of the first instance, the defendant appealed against it. In December 2010, the court of second instance rejected the appeal and upheld the original judgment.

Analysis of the legal relationship of 2. ATM savings contract disputes.

How to bear the legal liability between the parties to the ATM dispute, we must first clarify the relationship between the subjects. From a purely civil point of view, the parties involved in the legal relationship of bank cards are mainly bank card users, card issuers, agents and infringers.

1. In this kind of dispute, the legal subject in the core position is the user and the issuing bank, because most of the bank cards involved in the dispute are debit cards, in essence and the general savings is not much different, bank card account opening can be regarded as the process of deposit, the user and the opening bank is a savings contract relationship. The savings contract does not belong to the list of famous contracts stipulated in the contract law of our country, and is an unnamed contract. Most of the academic circles advocate the loan contract, saying that after the depositor deposits the money into the bank card, the ownership of the money is transferred to the bank, and the cardholder enjoys the claim to the bank, not the ownership of the deposit.

2. In addition to the opening bank, practice often involves off-site withdrawal banks. In the above cases, depositors' money was withdrawn in different places. From the perspective of agency legal relationship, the off-site withdrawal bank is only the entrusted agent of the opening bank, the agent of the opening bank to fulfill the repayment obligations, and the Correspondent Bank bear the legal responsibility. If a lawsuit occurs as a result of this situation, generally speaking, the original defendant is still the user and the bank, and the off-site withdrawal bank can only be regarded as a third party without an independent claim.

3. The relationship between the impostor, I .e. the infringer, and other legal subjects. The infringer actually infringes the depositor's contractual claim against the issuing bank, which is an indirect infringement by a third party, and there is an infringement relationship between them. From the point of view of the effect of debt, the effect of debt is divided into internal effect and external effect, in terms of external effect, claims and other civil rights are inviolable, when such rights are infringed by a third party, the creditor is entitled to legal relief.

If the infringer infringes on the subject matter of payment, the debtor and the infringer are not really jointly and severally liable. The creditor may hold the debtor liable for default or the infringer liable for tort, and the creditor has the option.^①

3. liability for breach of contract and burden of proof risk tips.

1. Liability for breach of contract shall be determined in strict accordance with the contract.

The core dispute in such cases lies in the manner in which risk-bearing is allocated, and as can be seen from the above analysis, savings contracts, as nameless contracts, should be subject to the provisions of the General Principles of Contract Law and the General Principles of Civil Law. Article 5 of the the People's Republic of China Contract Law stipulates that "the parties shall determine the rights and obligations of the parties in accordance with the principle of fairness" and Article 4 of the General Principles of the People's Republic of China Civil Law stipulates that "civil activities shall follow the principle of voluntariness. Fairness. Equal value for compensation. The principle of good faith". If both parties are at fault in the occurrence of the loss, it is fair and reasonable for the court to determine the liability of both parties based on the size of the fault.

Of course, in ATM savings contract disputes, the form of the contract is generally a written form contract made by the bank. In terms of clause making, the bank must absolutely avoid excluding the main rights of depositors and exempting the main obligations of the bank. Moreover, for some matters that need special attention, it is better to reserve a special reminder and signature page to fulfill the full reminder obligation. If disputes arise from such clauses, the bank is liable for breach of contract.^②

2. Risk tips on the allocation of the burden of proof.

In terms of the burden of proof, it is worth noting that in the above-mentioned cases, the court increased the burden of proof on the bank, thus making the whole case develop in an adverse way to the bank. In fact, in the author's opinion, the judgment destroyed the principle of fairness in handling such cases established by the contract law and the general principles of civil law, There are obvious defects and loopholes in the distribution of the burden of proof. Similar to the Supreme People's Court's "Letter on How to Allocate the Burden of Proof in the Case of Tianjin Post Office and Jiao Changnian's Certificate of Deposit Dispute", the judgment of this case is only reasonable in terms of specific circumstances, and if applied to the general state, it is obviously contrary to the basic principles of civil law and civil procedure law.

(1) The increase in the burden of proof for banks is first reflected in the presumption that bank cards are fake cards based on video. The characteristic of ATM is that users withdraw money by virtue of cards and passwords. The sizes of ATM card insertion ports and cards are made according to relevant standards. The characteristics of the card surface are affected by the light line, shadow, angle, camera pixels and their picture restoration ability at the time of the crime. It is impossible to make a 100% judgment on the authenticity of the card by naked eyes. At the same time, the ATM machine itself has to verify the card and password during the transaction, and will only accept the withdrawal instruction if the two are consistent. Its judgment on whether the card is true is much more reliable than that inferred by naked eyes. Therefore, in the absence of a definite criminal investigation conclusion, the court hastily judged that the card was a fake card obviously lacked objective basis. In this case, of course, the court's presumption of a counterfeit card withdrawal based on the fact that the place of withdrawal was off-site was reasonable but not rigorous enough. Therefore, the author believes that in similar disputes, the basic burden of proof of depositors, that is, the fact that the fake card does exist, is indispensable, and the bank cannot prove it by itself at this point, and even if it proves that the fake card does exist, it should also be on a case-by-case basis, reasonably consider the fault of both sides, and cannot blindly impose the responsibility on the bank.

(2) Where the bank insists that the withdrawal is a lawful performance, the court of first instance imposes the burden of proof on the bank to prove that the withdrawal was a malicious withdrawal or a criminal act that may not even exist. According to the principle of evidence, only the party claiming that the fact occurred or existed can be required to bear the burden of proof, but not the party claiming that the fact did not occur or did not exist. In this case, the plaintiff filed a case on the basis that his card was stolen. Therefore, the corresponding burden of proof for the fact of "theft" should be borne by the plaintiff, not the defendant. The court further took the defendant's defense as a claim, requiring the bank to give evidence on the fact that it did not occur or the possibility of certain circumstances, which is also a violation of the above-mentioned evidence principle.

4. on collateral obligations

Article 60, paragraph 2, of the Contract Law stipulates: "The parties shall follow the principle of good faith and perform the obligations of notice, assistance and confidentiality in accordance with the nature, purpose and trading habits of the contract." This clause makes it clear that the parties to the contract shall follow the principle of good faith and bear the corresponding obligations when performing the contract. In the process of contract performance, in order to assist in the realization of the creditor's payment interests or fully protect the creditor's personal or property interests, the debtor shall follow the principle of good faith and perform the obligations of notice, assistance, confidentiality and protection according to the nature, purpose and trading habits of the contract. Since such obligations are attached to the main payment obligations, they are called the accompanying obligations of the contract.

In the case of ATM savings contract disputes, the cause is due to the failure to fulfill the accompanying obligations caused by a large proportion. For banks, the main accompanying obligation is to ensure the applicability of the trading platform, that is, ATM, and to provide reasonable and thoughtful security reminders and security obligations to depositors; for depositors, as parties to the contract, they should be responsible for their own information and materials such as bank account numbers, passwords, identity documents, etc. In particular, the reserved bank password, as an important means of confirming the identity of the trader and ensuring the security of the transaction between the bank and the depositor, has the characteristics of privacy and uniqueness. China's commercial banks usually clearly stipulate in the relevant business articles or agreements: "depositors must properly keep passbooks, bank cards and their personal passwords".^③The author believes that such an agreement is reasonable and cannot be regarded as a standard clause and blindly denied and excluded, otherwise it will inevitably lead to extremely unequal contractual status between the two parties to the savings contract, and in the long run, the bank's risk will inevitably lead to damage to the interests of depositors.

5. Bank Risk Avoidance Advice

1. Improve the safety of the ATM machine itself

In addition to the necessary maintenance and maintenance of ATM machines, banks should also pay attention to the technical improvement of machine safety while increasing service functions. For example, the magnetic card technology commonly used now should be replaced by more advanced chip cards to improve The security of depositors' funds can also reduce the difficulty of obtaining evidence when disputes occur with the help of advances in information security, thereby reducing bank risks.

2. Pay attention to the safety of ATM environment

At present, ATM machines, cameras, anti-prying alarm and security networking have basically become standard, but on this basis, attention should also be paid to external prevention, especially to do a good job in personnel protection. Many ATM theft crimes occur at night. Banks can well avoid cases such as case 2 by strengthening prevention at night and doing a good job of security patrols several times a day.

3. Prompt users to improve safety awareness

Banks should actively remind customers to be vigilant when entering self-service banks and using ATMs to avoid disclosing personal information or transferring money to unknown accounts in any way. For example, banks should try their best to remind customers to prevent cardholders from providing passwords to people of unknown origin or transferring money to accounts of unknown origin, so as to prevent depositors from being cheated and causing losses to their own property. In particular, it should be noted that when banks fulfill the above-mentioned notification obligations and improve their own security precautions, they should pay attention to the necessary evidence retention work in case of similar disputes as evidence that they have fulfilled the relevant accompanying obligations.^④

4. Improve the industry ATM security standards

Within the industry, it is recommended that commercial banks, together with the central bank, formulate relevant regulations and industry standards on ATM standards and annual machine inspections as soon as possible, so that in the event of disputes, they can be used as evidence or known facts to reduce bank risks and unify the criteria for adjudication of such cases.

This article won the third prize of Jinan lawyer's business paper selection in 2011

References:

① Lu Chengren, Analysis of Civil Liability in ATM Stealing and Brushing Cases, Legal System and Society, 2008.4

② Wang Liming, Liability for Breach of Contract, China University of Political Science and Law Press

③ Zhang Wei, Bank ATM withdrawal dispute and its enlightenment, China Urban Finance, 2007.10.

④ Chang Yue, Analysis of some legal issues of bank card infringement, legal construction, 2005.3