借记卡盗刷风险分配研究

发布时间：2018-01-29 00:46

本文关键词： 借记卡盗刷盗刷行为类型风险分配　出处：《吉林大学》2016年硕士论文　论文类型：学位论文

【摘要】：在借记卡盗刷所引发的民事法律纠纷中,发卡行与持卡人之间的风险分配问题,关系到持卡人的权益能否得到充分保护,影响着金融消费者对于新型支付方式的选择和整个银行业的良性发展,因而成为现代支付法律体系所关注的核心问题之一。与各国的专门立法不同,我国现行支付体系的立法中尚未明确规定借记卡盗刷纠纷中发卡行与持卡人之间的损失分担规则。本文旨在为借记卡盗刷纠纷的解决设计相对公平合理的风险分配机制,以期为司法实践提供有益参考。在此机制设计的过程中,本文引入经济学的分析方法,提出符合经济效率的风险分配机制应当以最佳风险预防原则和最优风险分散原则作为理论基础,将风险更有倾向性地分配给能以最低成本预防风险和最有能力分散风险的一方。本文将实践中的真实盗刷案件予以分类,通过应用这两大原则,为每一类盗刷纠纷设计了与其相适应的、更为合理高效的风险分担机制,即:在主要因技术因素导致的盗刷纠纷中,由发卡行依严格责任承担全部损失,除非发卡行能够证明损失的发生与自身的行为之间不具有因果关系,或能够证明损失的发生主要是由于持卡人的原因造成,则持卡人承担有上限的损失;相反,在主要因持卡人的疏忽导致的盗刷纠纷中,由持卡人承担损失与行为之间因果关系的举证责任,除非持卡人能够证明损失的发生是由银行造成,或持卡人自身的行为并非造成损失的原因,否则持卡人应当首先承担有上限的损失,剩余部分损失由银行予以补充。这样的机制设计改善了传统风险分配规则中单方面侧重保护其中某一当事方的“一刀切”模式,更加符合我国经济和法制环境的具体情况,有利于市场主体之间的地位平衡,对于借记卡盗刷纠纷的妥善解决,保护金融消费者的权益,提高金融产品市场的活力以及促进我国金融体系的健康发展有着深远意义。
[Abstract]:In the civil legal disputes caused by debit card theft, the issue of risk distribution between the issuing bank and the cardholder is related to whether the rights and interests of the cardholder can be fully protected. It affects the choice of the new payment method and the healthy development of the banking industry, so it becomes one of the core issues of the modern payment legal system. It is different from the special legislation of various countries. The legislation of current payment system in our country has not clearly stipulated the rules of loss sharing between the issuer and the cardholder in the dispute of debit card theft and brush. The purpose of this paper is to design a relatively fair and reasonable risk division for the settlement of the dispute of debit card theft and brush. Matching mechanism. In order to provide a useful reference for judicial practice. In the process of designing this mechanism, this paper introduces the analysis method of economics. It is suggested that the optimal risk prevention principle and the optimal risk dispersion principle should be taken as the theoretical basis for the risk allocation mechanism in line with economic efficiency. The risk will be more tendentiously assigned to the party who can prevent the risk with the lowest cost and the most able to disperse the risk. This paper classifies the real case of theft and brush in practice and applies these two principles. Designed a more reasonable and efficient risk-sharing mechanism for each type of brush theft dispute, that is: in the brush theft dispute mainly caused by technical factors, the issuing bank should bear all the losses according to strict liability. Unless the issuing bank is able to prove that there is no causal relationship between the occurrence of the loss and its conduct, or that the loss was mainly caused by the cardholder, the cardholder shall bear the maximum loss; On the contrary, in the case of theft disputes caused mainly by the negligence of the cardholder, the cardholder bears the burden of proof of the causal relationship between the loss and the act, unless the cardholder can prove that the loss was caused by the bank. Or the cardholder's own behavior is not the cause of the loss, otherwise the cardholder should bear the loss with the upper limit first. The residual losses are replenished by banks. Such mechanisms are designed to improve the "one-size-fits-all" model of traditional risk allocation rules that focus unilaterally on the protection of one of the parties. More in line with the specific conditions of our economic and legal environment, is conducive to the balance of position among the market subjects, for the proper resolution of debit card theft and brush disputes, to protect the rights and interests of financial consumers. It is of great significance to improve the vitality of financial products market and promote the healthy development of our financial system.
【学位授予单位】：吉林大学
【学位级别】：硕士
【学位授予年份】：2016
【分类号】：D922.28

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