Civil liability on credit cards
Date Issued
2014
Date
2014
Author(s)
Chen, Ke
Abstract
Based on the brief introduction of the concept and the subject of credit cards, detailing the credit card transaction process and evolution of the various transactions, It points out that the legal relationship between the credit card transactions is not a triangle but a quadrilateral, namely composed of issuer and the cardholder, merchant, cardholder and merchant and the acquirer, the single institution and the card issuer, four pairs of legal relationship. Based on the credit card contracts, and three types of responsibility as the risk of credit card transactions and according to the categories discussed mainly: the first is the card cause the civil liability of the risk, mainly analyzes the error follow payment orders and the risk of failure of the ATM; the second is the civil liability of the risk caused by the card holder, including for credit-card debt has triggered interest problem, the cardholder when malicious overdraft and violate the criminal law of mainland China, the validity of the credit card contract, credit card, the liability of the guarantor and issuing false income to prove the responsibility of the unit, etc.; the third is the civil liability of the risk led by the third party, this paper discusses mainly the not authorized the use of credit card of civil liability and the expense. Credit card the civil liability of the parties, in the presence of a legally valid contractual relationship between the parties for contract liability, or rarely for tort liability. In credit card transactions, it should be based on the principle of imputation of contractual liability is the principle of strict liability and fault liability principle to determine the attribution of responsibility, and the bank should implement the principle of presumption of fault. Execution of payment orders for system or equipment error, issuer to the cardholder to undertake responsibility of breach of contract, compensation for the foreseeable rule. Through the discussion of legal relations and legal nature of the ATM, it points out that in the cardholder goodwill, ATM transaction log error or less out cash, card issuer to the cardholder for losses suffered as a result of negative liability for breach of contract, the sender can be based on the principal-agent contract liability for breach of contract to the owner of ATM, if the ATM fault is due to quality problems third failure or ATM or software service providers, the sender can breach or tort liability to its; ATM out cash, customers get excess funds improper conditions with civil law''s profit, should bear the liability according to the law of restitution of unjust enrichment. Cardholder malicious, is intentional tort, if the case constitutes a crime, should also be investigated for criminal responsibility. With the rising popularity of credit card issuance and ussing, due to the high interest of credit card transactions, the credit card debt problem is increasingly serious. In this paper, on the interest rate is too high can control from the legitimacy of interest regulation, elaborates the possibility and fairly, points out that the interest rate control is legitimate, possible and feasible. This article analyze the criminal law in the sense of malicious overdraft, pointing out that the contract is not invalid but may revoke the contract, if the issuer exercise the right of revocation, the contract is invalid, the cardholder shall bear tort liability; otherwise it is effective, the cardholder should bear contractual liability. The guarantor''s civil liability should be held in the highest overdraft credit card limit, if there exists a card fraud guarantee or know the fraud guarantor, surety bear no civil liability, otherwise it should assume joint responsibility to ensure that. In this paper, by investigating the false statement civil liability theory and legislation, pointing out that in the pure economic loss caused by a misrepresentation during compensation, not as single modelled on the British and American law to tort law strictures, it also needs a contract responsibility To solve the problem. By discussing the related case of misrepresentation of current law and judicial interpretation of the rules, and not the behavior of real income proof, constitutive requirements, the main responsibility imputation principles, the scope of compensation, liability form, pointing out that issued false proof of income units shall bear the responsibility of compensation, the cardholder malicious collusion case shall bear joint and several liability. In this paper, from the aspects of credit using without authorization the use of the legal nature of considerations, pointed out that to identify without authorization as unauthorized agency is quite reasonable. No discussion is authorized to use civil liability. There are three problems to be solved: one is without authorized the use of whether constitute authorized user of the cardholder''s use of ostensible agency? Second, if you do not constitute ostensible agency, how to bear the loss responsibility? The third it is under the constitute ostensible agency, and how to bear the loss responsibility? Pointing out constitute ostensible agency needs from and credit card, signature, password, id card and so on seven aspects comprehensive recognition. In has not formed the agency by estoppel, hairpin people get after the loss, unauthorized use, the cardholder, merchant acquirers, issuers are likely to want to assume responsibility, the responsibility of form is not the real joint and several liability of supplementary liability. No authorization to use is the full responsibility for the ultimate responsibility; and the cardholder and the acquirer to the issuer to undertake responsibility of breach of contract, as part of the responsibility, liability form for supplementary liability; not only to the merchant acquirer liable to the cardholder liability. The agency by estoppel, authorized the use of free people to bear the civil liability of infringement of creditor''s rights to the cardholder, is the full responsibility for the ultimate responsibility; the sender to assume the cardholder part of the liability for breach of contract; the acquirer bear part of the responsibility of breach of contract to the issuer; merchants both to the cardholder to accept responsibility single institution responsibility. In practice, the cardholder as the plaintiff Sue to the court, the cardholder can choose the defendant from four parts: the sender, without the person using without authorization of the use of people, merchants, acquirers. But according to whether the non authorized the use of the formation of the cardholder''s apparent agency, the cardholder foundation of right of claim is different, the shape and size of the parties to the responsibility of the cardholder is different.
Subjects
credit card
civil liability
interest
malicious overdraft
misrepresentation
using without authorization
SDGs
Type
thesis
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