>>>welcome 河南大学, You have logged in.
Logout History Contact us  
Font Size:  A A A Search “Fabao” Window English 中文 = 简体  繁体
  Favorite   DownLoad   Print
 
Cai Honghui v. Jin Cailai (A case about credit card disputes)
蔡红辉诉金才来信用卡纠纷案
【法宝引证码】

Cai Honghui v. Jin Cailai (A case about credit card disputes)
(A case about credit card disputes)
蔡红辉诉金才来信用卡纠纷案

Cai Honghui v. Jin Cailai
(A case about credit card disputes)

 

蔡红辉诉金才来信用卡纠纷案

[Abstract of Judgment] [裁判摘要]
When a CUP merchant accepts a payment through a signed CUP credit card, it should verify that the cardholder's signature on the transaction receipt is the same as that on the signature strip of the credit card, pursuant to the agreement between the merchant and the card-issuing bank and the Bankcard Networking Business Standards issued by the People's Bank of China. The merchant shall assume the corresponding compensatory liability for loss caused to the cardholder by its failure to verify the signature. However, if the cardholder has set a password for his credit card but the password is leaked to someone for his own fault, the compensatory liability of the merchant may be reduced accordingly. 银联卡特约商户在受理有预留签名的银联信用卡消费时,应当根据其与发卡银行之间的约定以及中国人民银行《银行卡联网联合业务规范画风不对,如何相爱》的规定,核对持卡人在交易凭证上的签字与信用卡签名条上预留的签字是否一致。未核对签名造成持卡人损失的,应承担相应的赔偿责任。信用卡所有人为信用卡设置了密码,但因自身原因导致密码泄露的,可以适当减轻特约商户的赔偿责任。
BASIC FACTS 
Plaintiff: Cai Honghui, male, Han Chinese, 38 years old, government staffer, domiciled at South Tiantong Road, Yinzhou District, Ningbo City. 原告:蔡红辉。
Defendant: Jin Cailai, male, Han Chinese, 40 years old, individual merchant, domiciled at Zhenxing Road, Qiuai Town, Yinzhou District, Ningbo City. 被告:金才来。
Cai Honghui filed a lawsuit with the People's Court of Yinzhou District, Ningbo City, Zhejiang Province for credit card disputes with Jin Cailai. 原告蔡红辉因与被告金才来发生信用卡纠纷,向浙江省宁波市鄞州区人民法院提起诉讼。
Cai Honghui claimed that: at around 22:30 on May 16, 2009, he was abducted by Wang Chengnan and another three guys when pulling over in a street of Fangzhuang Community, Qiuai Town, Ningbo City. The four guys robbed the plaintiff of six credit cards, forced him to tell the passwords, and restricted his personal freedom. At 9:00 on May 17, the plaintiff called police immediately after he was freed. Later, when checking his credit card records, he found that at 8:19 and 8:20 on May 17, the credit cards were used at Yinzhou Qiuai Jinfeng Jewelry Store, Ningbo City, which was run by the defendant, Jin Cailai. Two payments of 75,000 yuan and 3,670 yuan were made through a credit card of Bank of Yinzhou and a credit card of Bank of China, respectively. The cardholder signatures on the POS receipts were Liu Ming. Although the plaintiff had signed on the back of both credit cards, the defendant neither checked the consistency between the signature of cardholder and that on the back of the credit cards nor verified the identity card of the cardholder. The defendant's failure to carefully examine the unusual consumption behaviors of the cardholder had resulted in damage to the property of the plaintiff, so the defendant should bear the corresponding compensatory liability. The plaintiff requested the court to order the defendant to compensate the plaintiff for his economic loss of 78,670 yuan. 原告蔡红辉诉称:2009年5月16日 22时30分许,原告驾车在宁波市邱隘镇方庄社区路边停车时,被案外人汪成楠等四人劫持。汪成楠等四人抢走原告信用卡 6张,逼迫原告说出密码并限制原告的人身自由。5月17日9时,原告被解除人身限制后立即报案。后查询信用卡记录得知, 5月19日上午8时19分、8时20分,原告的信用卡被他人在被告金才来经营的宁波市鄞州邱隘金凤珠宝店进行了刷卡消费,其中鄞州银行信用卡消费75 000元,中国银行信用卡消费3670元,POS签购单上持卡人签名为刘明。原告在前述两张信用卡背面均有原告本人的预留签名,被告未审查该持卡人签名与信用卡预留签名是否一致,也未对持卡人的身份证进行核对审查,对持卡人的不正常消费行为未采取严格的审查措施,导致原告财产受损,故应承担相应的赔偿责任,请求法院判令被告赔偿原告经济损失78 670元。
The plaintiff, Cai Honghui, submitted the following evidence in the trial at first instance: 原告蔡红辉一审提交以下证据:
1. No. 762 [2009] Criminal Judgment (First Instance, Criminal, Yinzhou, Ningbo) and No. 275 [2009] Criminal Ruling (Final, Criminal, Ningbo), to prove that on May 16, 2009, the plaintiff was robbed of his credit cards, which were then used for consumption of 78,670 yuan at the store of the defendant and withdrawal of cash of 49,200 yuan from ATMs, and other facts; 1.(2009)甬鄞刑初字第762号刑事判决书及(2009)甬刑终字第275号刑事裁定书各1份,用以证明2009年5月16日原告蔡红辉遭到抢劫以及信用卡被抢劫后在被告金才来处消费78 670元,在其他ATM机上支取现金49 200元等事实;
2. One photocopy of each of the credit card of Bank of China and the credit card of Bank of Yinzhou in dispute, to prove that the plaintiff had signed on the back of both credit cards; and 2.涉案中国银行及鄞州银行信用卡复印件各一份,用以证明原告蔡红辉在该两张信用卡的背面均有预留签名的事实;
3. Two POS receipts of Ningbo CUP Commercial Co., Ltd. with the signature of “Liu Ming” and the amounts of 75,000 yuan and 3,670 yuan respectively, to prove that on May 17, 2009, the two credit cards were used for consumption of 78,670 yuan at Yinzhou Qiuai Jinfeng Jewelry Store, Ningbo City, run by the defendant and the signature of cardholder was different from that on the back of the credit cards at the time of transaction. 3.签字为“刘明”的宁波银联商务POS签购单两份,金额分别为75 000元、3670元,用以证明2009年5月17日原告蔡红辉被抢的两张信用卡在被告金才来经营的宁波市鄞州邱隘金凤珠宝店消费78 670元,消费时,持卡人签名与原告在信用卡背面的预留签名不一致。
The defendant Jin Cailai argued that: first, the law did not prohibit consumption by using another person's credit card, and there was no relevant information on the credit cards to allow the defendant to confirm whether the consumer holding the cards was the plaintiff; second, the payments under both of the stolen credit cards were for consumption by password instead of signature, so the defendant had nothing to do with the economic loss of the plaintiff; and third, after the crime was committed, the public security organ had recovered some of the stolen things and money, so the actual economic loss of the plaintiff was less than 78,670 yuan. The defendant requested the court to dismiss the plaintiff's claims. 被告金才来辩称:首先,法律并未禁止使用他人的信用卡消费,而且信用卡上也无法显示相关信息,被告无法确认持卡消费人是否是原告蔡红辉本人;其次,原告被盗刷的两张信用卡均是凭密码消费,而不是凭签名消费,故原告经济损失与被告无关;第三,案发后,公安机关已经追回部分赃物、赃款,因此原告实际的经济损失不足 78 670元。请求驳回原告的诉讼请求。
Jin Cailai did not submit any evidence in the trial at first instance. 被告金才来一审没有提交证据。
Through trial at first instance, the People's Court of Yinzhou District, Ningbo City found that: 宁波市鄞州区人民法院一审查明:
At around 22:30 on May 16, 2009, Cai Honghui was abducted by Wang Chengnan and another three perpetrators when pulling over in a street of Fangzhuang Community, Qiuai Town, Ningbo City. They robbed the plaintiff of 850 yuan cash, a watch worth 21,177 yuan and six credit cards, and obtained the passwords for the credit cards by coercion. While restricting the victim's personal freedom, they made several withdrawals from the ATMs of different banks, with a total amount of 49,200 yuan. At about 8:00 on May 17, one of the criminals, Wang Chengnan, went to Yinzhou Qiuai Jinfeng Jewelry Store, Ningbo City, run by the defendant, and bought three gold necklaces, two gold bracelets and two gold rings with a total value of 78,670 yuan by using the taken credit card of Bank of Yinzhou and credit card of Bank of China. He provided the passwords for the payments, and signed the Cardholder Signature part of the two POS receipts with “Liu Ming”, which was different from the signature on the back of the credit cards. At 9:00 on the same day, the plaintiff was freed, and called police. Afterwards, the public security organ arrested the four criminals, and recovered 15,040 yuan cash, two gold necklaces, two gold bracelets and two gold rings. One of the gold necklaces, worth 8,013 yuan, was owned by Wang Chengnan, who voluntarily offered to compensate the plaintiff. All of the other gold jewelry, worth 42,693 yuan, was purchased by the criminals from the defendant through credit card. The public security organ returned the above money and property to the plaintiff, but the rest of cash and property had been spent or lost by the criminals. The four criminals, who were sentenced for robbery, had so far not compensated the plaintiff for the remaining economic loss. 2009年5月16日22日时30分许,原告蔡红辉驾车在邱隘镇方庄社区路边停车时,被罪犯汪成楠等四人劫持。罪犯通过搜身,劫得原告身上现金850元、价值21 177元的手表1只、信用卡6张,并用威胁手段获得前述信用卡的密码。罪犯限制原告的人身自由,先后在几家银行的ATM机上取得现金49 200元。5月17日8时许,罪犯汪成楠至被告金才来个体经营的宁波市鄞州邱隘金凤珠宝店,以劫得的鄞州银行、中国银行两张信用卡及密码刷卡购得价值 78 670元的黄金项链3条、黄金手链2条和黄金戒指2枚,并以“刘明”的名义在两份POS签购单上持卡人签名处签名,该签名与信用卡背面的预留签名不符。当日9时,原告被解除人身限制后报案。案发后,公安机关陆续将四罪犯抓获,追回现金 15 040元、黄金项链2条、黄金手链2条和黄金戒指2枚,其中1条价值8013元的黄金项链系罪犯汪成楠所有并自愿退赔给原告,其余价值42 693元的金饰均系罪犯从被告处刷卡购得。前述款物已由公安机关发还原告,其余现金和实物被罪犯挥霍或遗失。四罪犯以抢劫罪被判刑后,至今未继续退赔原告的经济损失。
The court also found that: Ningbo Branch of Industrial and Commercial Bank of China had authorized Ningbo CUP Commercial Co., Ltd. (Party A) to enter into an Agreement for CUP Merchants in Ningbo with Yinzhou Qiuai Jinfeng Qiuai Jewelry Store of Ningbo City (Party B). Article 8.10 of the Agreement provided that: “Party B shall accept CUP cards in strict accordance with the latest Guidelines on POS Acceptance for Merchants in Ningbo provided by Party A. Cashiers of Party B shall verify whether a cardholder's signature on the receipt is the same as that on the signature strip of the CUP card (except for a transaction with an unregistered IC card). Party B shall reject a transaction that requires the cardholder's signature if such a signature is not provided, is illegible or is altered or obviously different from the one on the back of the CUP card. Party B shall be liable for the corresponding economic losses arising from the absence of a cardholder's signature on the purchase slip or from the obvious difference of a signature from that on the back of the card.” 另查明,宁波市工商银行委托宁波银联商务有限公司作为甲方与乙方宁波市鄞州邱隘金凤珠宝店签订《宁波市特约商户受理银联卡协议书》第八条第十款规定:“乙方应严格按甲方最新提供的《宁波市特约商户POS受理指南》受理银联卡,乙方收银人员应核对持卡人在交易凭证上的签字,与银联卡签名条上的签字是否一致(持不记名IC卡交易除外),乙方受理要求持卡人必须签名的交易时,银联卡上没有签名、签名无法辨认、签名被涂改或者明显不一致的,乙方应拒绝交易。若因交易签购单无持卡人签名或者签名与卡片预留的签名明显不符,由此造成的经济损失,由乙方承担相应责任。”
The focal dispute in this case was: for a password-protected card with a signature on its back, if a criminal acquired the password from the cardholder by coercive means and used it at a credit card merchant by providing a signature different from that on the back of the card, and the merchant failed to verify the consistency between the card user's signature on the receipt and that on the signature strip of the card, resulting in any property loss to the cardholder, should the merchant be liable for compensation? 本案争议的焦点是:对于既设定了密码又预留了签名的信用卡,犯罪分子以胁迫信用卡所有人的手段获得该卡密码后,在信用卡特约商户处消费,签名与预留签名不符,商户没有核对信用卡使用人在交易凭证上的签字与信用卡签名条上的签字是否一致,导致信用卡所有人财产受到损失,商户应否承担赔偿责任。
JUDGMENT'S REASONING
卡在了奇怪的地方
 
The People's Court of Yinzhou District, Ningbo City held that: 宁波市鄞州区人民法院一审认为:
 中国人民银行《银行卡联网联合业务规范》第三章3.3节c项规定:“持卡人将银行卡交特约商户收银员;特约商户收银员在POS上刷卡,输入交易金额,要求持卡人通过密码键盘输入6位个人密码,如发卡行不要求输入密码的,由收银员直接按确认键。交易成功,打印交易单据,收银员核对单据上打印交易账号和卡号是否相符后交持卡人签名确认,并对信用卡交易核对签名与卡片背面签名是否一致后,将银行卡、签购单回单联等交持卡人;交易不成功,收银员应就提示向持卡人解释。”本案中,宁波市鄞州邱隘金凤珠宝店作为乙方,与宁波市工商银行委托的宁波银联商务有限公司签订的《宁波市特约商户受理银联卡协议书》第八条第十款规定:“乙方应严格按甲方最新提供的《宁波市特约商户POS受理指南》受理银联卡,乙方收银人员应核对持卡人在交易凭证上的签字,与银联卡签名条上的签字是否一致(持不记名IC卡交易除外),乙方受理要求持卡人必须签名的交易时,银联卡上没有签名、签名无法辨认、签名被涂改或者明显不一致的,乙方应拒绝交易。若因交易签购单无持卡人签名或者签名与卡片预留的签名明显不符,由此造成的经济损失,由乙方承担相应责任。”原告蔡红辉按照其与发卡银行的约定,在信用卡上预留了签名,设定了密码。发卡银行在信用卡正面印制了原告姓名的拼音。宁波市鄞州邱隘金凤珠宝店是银联卡的特约商户,被告金才来作为业主在受理银联信用卡时,应当核对持卡人在交易凭证上的签字与信用卡签名条上的签字、信用卡正面的拼音姓名是否一致。本案犯罪分子持抢劫所得的信用卡至被告处刷卡购买黄金饰品,持卡人在POS签购单上的签名与信用卡背面的预留签名不符,也与信用卡正面的拼音明显不同,因此,应当认定被告未进行认真审核,对原告因此而造成的损失,被告应当承担相应责任。原告虽设定了密码,但在犯罪分子的威胁之下透露了密码,故应当适当减轻被告的赔偿责任。结合案情全面分析,酌定被告应对原告的损失承担60%的赔偿责任。
Section 3.3 (c), Chapter III of the Bankcard Networking Business Standards issued by the People's Bank of China provided that “The cardholder presents his bankcard to the cashier of a franchised merchant; after swiping the card and entering the transaction amount into the POS, the cashier requires the cardholder to enter a 6-digit password into a PIN pad. If no password is required by the card-issuing bank, the cashier directly presses Enter. A receipt is printed out if the transaction is successful. After verifying the consistency between the transaction account number printed on the receipt and the card number, the cashier gives it to the cardholder for a confirmation signature; or in the case of a credit card payment, after verifying the consistency between the consumer's signature and that on the back of the credit card, the cashier gives the bank card and the customer copy of the purchase slip to the cardholder. If the transaction is not successful, the cashier explains the cause of transaction failure to the cardholder according to the error information.” In this case, Ningbo Yinzhou Qiuai Jinfeng Jewelry Store, as Party B, had entered into an Agreement for CUP Merchants in Ningbo with Ningbo CUP Commercial Co., Ltd., as Party A. Article 8.10 of the Agreement provided that: “Party B shall accept CUP cards in strict accordance with the latest Guidelines on POS Acceptance for Merchants in Ningbo provided by Party A. Cashiers of Party B shall verify whether a cardholder's signature on the receipt is the same as that on the signature strip of the CUP card (except for a transaction with an unregistered IC card). Party B shall reject a transaction that requires the cardholder's signature if such a signature is not provided, is illegible or is altered or obviously different from the one on the back of the CUP card. Party B shall be liable for the corresponding economic losses arising from the absence of a cardholder's signature on the purchase slip or from the obvious difference of a signature from that on the back of the card.” The plaintiff, Cai Honghui, had affixed his signature to the back of the credit cards and set passwords for them pursuant to the agreement with the card-issuing banks. The banks had printed the pinyin for his name on the front of the cards. Ningbo Jinzhou Qiuai Jinfeng Jewelry Store was a CUP merchant, and its owner, Jin Cailai, should have verified the consistency of the cardholder's signature on the receipts with that on the back of the credit cards and the pinyin on the front of the credit cards before accepting them. In this case, the criminal used credit cards obtained in robbery to buy gold jewelry at the defendant's store, and gave a signature different from that on the back of the cards and the pinyin on the front of the cards. Therefore, the defendant should be deemed to have failed to make proper verification, and should be liable for the corresponding loss caused to the plaintiff. Although the plaintiff had set passwords for his credit cards, he revealed them under the threat of the criminals, so the liability of the defendant should be reduced accordingly. Upon a comprehensive analysis of the case, the court determined that the defendant should compensate the plaintiff for 60% of his loss. 关于原告蔡红辉损失的计算问题,涉案信用卡在被告处刷卡消费的金额为 78 670元,但应当扣除公安机关追回并发还原告的金饰价值合计42 693元,此外,罪犯自愿退赔的黄金项链,可按8013元评估价,根据刷卡消费额占全部损失的比例予以折算扣减。因此,对于原告信用卡消费损失的金额应认定为31 810元。按照被告承担60%责任计算,应当赔偿原告19 086元。
As for the calculation of the plaintiff's loss, the credit cards at issue were used for consumption of 78,670 yuan at the defendant's store, but some of the gold jewelry in a total amount of 42,693 yuan had been recovered by the public security organ and returned to the plaintiff. In addition, the estimated value of the gold necklace voluntarily offered by one criminal, which was 8,013 yuan, should be converted and deduced according to the ratio of the credit card consumption amount to the overall loss. In sum, the credit card consumption loss of the plaintiff should be determined as 31,810 yuan. The defendant should compensate the plaintiff for 60% of his loss, i.e. 19,086 yuan. 
JUDGMENT 据此,浙江省宁波市鄞州区人民法院于2010年1月6日判决:
Hence, on January 6, 2010, the People's Court of Yinzhou District, Ningbo City, Zhejiang Province rendered the following judgment: 被告金才来赔偿原告蔡红辉经济损失 19 086元。
Jin Cailai should compensate Cai Honghui for his economic loss of 19,086 yuan. 
COMMENTARY 一审宣判后,双方当事人在法定期间内均未提起上诉,一审判决已经发生法律效力。
After the announcement of the judgment of first instance, neither party appealed within the statutory period, and the judgment came into effect.

 

     
     
Scan QR Code and Read on Mobile
【法宝引证码】        北大法宝en.pkulaw.cn
Message: Please kindly comment on the present translation.
 
Confirmation Code:
Click image to reset code
 
  Translations are by lawinfochina.com, and we retain exclusive copyright over content found on our website except for content we publish as authorized by respective copyright owners or content that is publicly available from government sources.

Due to differences in language, legal systems, and culture, English translations of Chinese law are for reference purposes only. Please use the official Chinese-language versions as the final authority. Lawinfochina.com and its staff will not be directly or indirectly liable for use of materials found on this website.

We welcome your comments and suggestions, which assist us in continuing to improve the quality of our materials as we dynamically expand content.
 
Home | About us | Disclaimer | Chinese