网银盗刷案例分析

发布时间：2018-03-02 14:00

本文选题：网银盗刷　切入点：格式条款　出处：《兰州大学》2017年硕士论文　论文类型：学位论文

【摘要】：网银盗刷作为我国金融领域犯罪的新形式,近年来,网银盗刷案件频发,群众反应强烈,严重影响了网上银行的发展,损害了网上银行的形象,给公民造成了较大的财产损失,更损害了我国金融秩序的稳定性。虽然国家加大了对金融领域犯罪的打击力度,但是新世纪的骗子智商越来越高,骗术越来越有含金量,骗子的套路更是八仙过海各显神通。同时,由于法律具有天然的滞后性,无法针对网银盗刷案件进行及时、有效的规范和调整,网银盗刷中的举证责任、损失分担等问题并没有明确的法律条文规定,因此网银盗刷案件在司法实务中的不同判决结果引发了很多争议。在这种大背景下,通过对网银盗刷案例的分析,提出本文自己的看法,为司法事务提供相对可行的思考方式和解决意见,以期可以作为解决网银盗刷问题的一种途径。本文以三则判决结果迥异的典型网银盗刷案例为视角,对网银盗刷案件涉及的欺诈性盗刷、储蓄协议、格式条款等系列问题进行了法律分析,针对案件争议焦点问题和案件影射的相关问题进行了分析并阐述了自己对这些问题的看法和意见,期望能够对以后司法实务中此类问题的合理解决贡献自己的绵薄之力。本文分为引言、正文和结语三个部分。正文有三章:第一章为案情介绍及争议焦点,对案件审判过程中控辩双方争议的焦点进行了概述和列明。第二章为案件争议焦点的法律分析,结合案例及相关司法解释有关网银盗刷的规定,针对控辩双方争议的焦点和此类案件涉及的法律难题逐一分析。一是对私人秘密泄露真伪的质疑,对于盗刷中主观责任证明的可行性进行了分析;二是对储蓄协议格式条款效力内容进行分析认定;三是对合理举证责任分配标准的探讨;四是具体确定责任范围。第三章为本案引发的法律思考。结合案例及上述分析,围绕争议焦点及映射出的问题从合理证明主观责任、明确网银当事人的权利义务、完善网银纠纷举证责任分配和增加纠纷解决途径,有针对性地提出了解决网银盗刷案件的建议。
[Abstract]:As a new form of crime in the financial field of our country, in recent years, there have been frequent cases of theft and brushing of net silver, and the masses have reacted strongly, which has seriously affected the development of the online bank, damaged the image of the online bank, and caused great property losses to the citizens. It has also damaged the stability of our financial order. Although the state has stepped up its crackdown on crimes in the financial field, the swindlers of the new century are getting more and more intelligent and deceptive with more and more gold content. At the same time, due to the natural lag of the law, it is impossible to carry out timely, effective regulation and adjustment in connection with the case of theft and brush of net silver, and the burden of proof in the case of theft of net silver brush is also the burden of proof in the case of theft of net silver brush. Loss allocation and other issues are not clearly stipulated in the legal provisions, so the different judgment results in the judicial practice of the case caused a lot of controversy. Under this background, through the analysis of the case of the theft of the net silver brush, This paper puts forward my own view, and provides a relatively feasible way of thinking and resolving opinions for judicial affairs, in the hope that it can be used as a way to solve the problem of net silver theft and brush. This paper takes three typical cases with different judgment results as the visual angle. The legal analysis is made on a series of problems such as fraudulent theft of brush, savings agreement, format clauses and so on, which are involved in the case of theft of brush by net silver. Based on the analysis of the focus of the case dispute and the related problems of the insinuation of the case, the author expounds his own views and opinions on these issues. This paper is divided into three parts: introduction, text and conclusion. There are three chapters in the text: the first chapter is the introduction of the case and the focus of the dispute. The focus of the dispute between the prosecution and the defense in the course of the case trial is summarized and listed. The second chapter is the legal analysis of the dispute focus of the case. The focus of the dispute between the prosecution and the defense and the legal problems involved in such cases are analyzed one by one. The first is the questioning of the disclosure of private secrets and the analysis of the feasibility of the proof of subjective responsibility in the theft of the brush; The second is to analyze the content of the form clause of savings agreement; the third is to discuss the distribution standard of reasonable burden of proof; the fourth is to determine the scope of liability; the third chapter is the legal thinking triggered by the case. Combined with the case and the above analysis, Focusing on the focus of the dispute and the problems mapped out from the reasonable proof of subjective responsibility, clear the rights and obligations of the parties, improve the distribution of the burden of proof and increase dispute resolution, Put forward the suggestion of solving the case of net silver theft and brush with pertinence.
【学位授予单位】：兰州大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D920.5;D924.3

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