Report on the Trial of Financial Cases and Ten Noteworthy Financial Cases in Shanghai Courts 2018 | | 2018年度上海法院金融商事审判情况通报及十大案例 |
| (July 29, 2019) | | （2019年7月29日） |
 Report on the Trial of Financial Cases in Shanghai Courts 2018.pdf
| | 2018年度上海法院金融商事审判情况通报 |
| Ten Noteworthy Financial Cases in Shanghai Courts of 2018 | | 2018年度上海法院金融商事审判十大案例 |
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| Contents | | 目 录 |
| 1. Financial Institutions Have the Obligation to Timely Correct Erroneous Credit Information | | 一、金融机构有义务及时更正错误征信信息 |
| 2. Issuing Bank May Adjust Credit Limit Based on Cardholder's Credit Standing Pursuant to Contract | | 二、发卡行有权依约根据持卡人资信状况调整信用卡额度 |
| 3. Principles of Judicial Discretion on The Apparent Examination Obligation of Advising Banks under UCP600 | | 三、UCP600下信用证通知行表面审核义务的司法裁量原则 |
| 4. Banks shall Reach Agreement with Customers on Payment Limits of Electronic Ciphers and Disclose to Customers Relevant Risks | | 四、银行应与客户约定电子密码器支付限额并进行风险揭示 |
| 5. The Agreement between Parties cannot be Relied on to Defend against the Record in the Electronic Commercial Draft System | | 五、当事人的约定不能对抗电子商业汇票系统中的记载 |
| 6. Invalid Sales Contract does not Necessarily Invalidate the Short-term Export Credit Insurance Contract | | 六、短期出口信用综合险中销售合同无效并不导致保险合同无效 |
| 7. A Cargo Carrier may Rely on the Agreed Limit of Liability to Defend Against a Tort Claim by an Insurer | | 七、货物承运人有权以合同约定的责任限额对抗保险人侵权赔偿请求权 |
| 8. The Admission of the Appraiser's Opinion on Disability in Dispute over Life Insurance | | 八、人身保险纠纷中伤残鉴定意见的认证规则 |
| 9. Agreements executed by Commercial Factoring Companies on Lending through P2P Platforms are Void and Invalid | | 九、商业保理公司通过P2P平台放贷为无效合同 |
| 10. Entrusted Shareholding Agreement in Listed Companies is Held Invalid | | 十、上市公司股权隐名代持行为应认定无效 |
| Case No.1 | | 案例一 |
| Financial Institutions Have the Obligation to Timely Correct Erroneous Credit Information | |
金融机构有义务及时更正错误征信信息 |
| - a case of Chen A v. Bank A on disputes over tort liability | | --陈某与甲银行侵权责任纠纷案 |
| [Gist] | | 【裁判要旨】 |
| A person's credit standing denotes the society's evaluation on his/her economic status, specifically on his/her economic reliability and ability to pay. Violation of a person's credit interests does not necessarily imply widespread dissemination of his/her erroneous credit information. Banks or other financial institutions which, in violation of relevant regulatory provisions, fail to correct erroneous credit information in time, shall be held liable for any losses thus caused. | | 信用是社会成员对民事主体经济上的评价，以其经济生活中的可靠性或支付能力为内容。侵犯个人信用利益，并不以错误信用信息的广泛传播为构成要件。银行等金融机构违反监管规定，不及时更改错误征信信息，造成相对方损失的，应承担相应赔偿责任。 |
| [Facts] | | 【基本事实】 |
| On March 12, 2013, Bank A and Chen A signed a Loan Contract (the “Loan Contract”), according which, on March 13, 2013, Bank A granted Chen a loan of RMB 4.22 million. The term of the loan was 12 months. However, when the loan matured, Chen failed to repay the principal and interest as agreed. On May 28, 2014, the two parties reached a Settlement Agreement (the “Settlement Agreement”), in which they renewed their agreement on the repayable principal, interest, fees and the repayment term. In June, July and August 2014, Chen made repayments in accordance with the Settlement Agreement. By the end of September 2014, Chen still had some overdue interest and legal fees left unrepaid, but was notified by Bank A that such legal fees and penalty interest could be waived. As of September 30, 2014, the status of the account was “Cleared”. On October 17, 2014, Bank A deregistered relevant mortgage right on the ground that “the underlying loan has been fully repaid”. | | 甲银行与陈某于2013年3月12日签订《借款合同》。根据合同约定，甲银行于2013年3月13日向陈某发放贷款人民币422万元（以下币种同），借款期限为12个月。涉案贷款到期时，陈某未按时偿还本息。双方于2014年5月28日达成《和解协议》，就涉案贷款的本金、利息、费用等还款金额及还款期限重新作出约定。陈某在2014年6月、7月、8月均按此《和解协议》偿还了欠款。至2014年9月底，陈某尚欠部分逾期利息、律师费，但甲银行告知其可以减免部分律师费和罚息。2014年9月30日，账户状态为“结清”。2014年10月17日，甲银行以“贷款还清”为由注销涉案抵押权。 |
| On October 22, 2015, Bank B checked credit status of Chen as the loan applicant with the Credit Reference System. The result showed that Chen still had an overdue loan of RMB79,353. Chen requested Bank A to correct the credit information, but Bank A failed to do so. Thereafter, Chen brought an action against Bank A, requesting the latter to correct the credit information and claiming damages for infringement upon his right to reputation. Bank A corrected the credit information during the action, but argued that its act did not constitute a tort because the erroneous information had not been widely disseminated and so not infringed upon Chen's personal reputation. | | 2015年10月22日，因办理贷款业务，乙银行向征信系统查询了陈某的征信信息，查询的结果显示陈某仍有79，353元贷款逾期未还。陈某要求甲银行更正其征信信息，但甲银行未予更正。陈某遂起诉请求甲银行变更其征信信息，并要求其承担损害赔偿责任。甲银行在诉讼期间更正了征信信息，但认为该错误信息没有得到广泛传播，并未侵犯其个人名誉，故不构成侵权。 |
| [Judgement] | | 【裁判结果】 |
| On July 30,2018, the Shanghai High People's Court (the “Court”) delivered a Civil Retrial Judgment ([2018] Hu Min Zai No.13), awarding Chen damages of RMB10,000 to be paid by Bank A. | | 上海市高级人民法院于2018年7月30日作出（2018）沪民再13号民事判决：甲银行赔偿陈某1万元。 |
| [Reasoning] | | 【裁判理由】 |
| The Court held that, a person's credit standing denotes the society's evaluation on his/her economic status, specifically on his/her economic reliability and ability to pay. Like the right to reputation, credit is also a kind of social evaluation, but the two differs in the scope of protection and constitutive elements. According to Article 40 of the Regulation on the Administration of Credit Investigation Industry, if an institution that provides information to the Basic Database of Financial Credit Information violates relevant rules by failing to resolve the dispute or to correct the erroneous and/or omitted data according to the regulation, it shall be held liable for compensating losses thus caused to relevant data subjects. According to this article, holding an information provider liable is not conditioned upon widespread dissemination of false information. Hence, there is no legal basis for the argument made by Bank A that its act did not constitute a tort because the false information had not been widely disseminated. Meanwhile, Chen the retrial petitioner, to eliminate the adverse influence of the infringement and safeguard his legal rights, incurred economic losses by filing lawsuits. There was a direct causality between such losses suffered by Chen and the failure by Bank A to timely correct the erroneous information, and Bank A should compensate for such losses. Therefore, the Court discretionarily awarded a compensation of RMB10,000. | | 法院认为，信用是社会其他成员对民事主体经济上的评价，是以经济生活中的可靠性或支付能力为内容。与名誉权相比，信用虽然也是一种社会上的评价，但两者的保护范畴不同，在其构成要件上也存在差异。我国《征信业管理条例》第四十条规定，向金融信用信息基础数据库提供或者查询信息的机构未按照规定处理异议或者对确有错误、遗漏的信息不予更正，给信息主体造成损失的，应依法承担民事责任。该条规定并未将错误信息的广泛传播作为责任构成要件。甲银行以错误信息未广泛传播为由主张不构成侵权的理由，欠缺法律依据。再审申请人为排除侵权行为，历经自行维权和诉讼，产生多项费用，其损失与甲银行未及时更正错误信息的行为之间存在相当因果关系，甲银行应予赔偿。法院酌情确定赔偿金额为1万元。 |
| [Significance] | | 【裁判意义】 |
| The modern economy is in essence credit economy, good credit has become an important condition for enterprises and individuals to develop their economic life normally. For individuals, credit information has a direct impact on their access to loans, credit cards and other financial services, and even on their education, employment, going abroad and many other aspects. As important providers of personal credit information, banks and other financial institutions should, in strict accordance with relevant regulatory provisions, report credit information truly, accurately and timely, and avoid any possible violation of personal rights and interests. The judgment of this case has made it clear that if a financial institution fails to correct erroneous credit information in a timely manner as required by relevant regulations and rules, it should be held liable for compensating losses thus caused to the information subject. This will help regulate the industry and safeguard the credit interests of parties concerned. | | 现代经济是信用经济，良好的信用已经成为企业及个人正常开展经济生活的重要条件。就个人而言，征信信息直接影响其获得贷款、申领信用卡等金融服务，甚至对其求学、就业、出国等越来越多的领域产生影响。银行等金融机构作为个人征信信息的重要提供者，应当严格遵守相关监管规定，真实、准确、及时地报送征信信息，避免因信息错误侵犯个人权益。本案判决明确金融机构违反相关规定，不及时更改错误征信信息，造成相对方损失的，应承担相应赔偿责任，将有利于规范行业行为，维护当事人信用利益。 |
| Case No.2 | | 案例二 |
| Issuing Bank May Adjust Credit Limit Based on Cardholder's Credit Standing Pursuant to Contract | | 发卡行有权依约根据持卡人资信状况调整信用卡额度 |
| - a case of Qiu A v. Credit Card Center A on credit-card disputes | | --邱某与甲信用卡中心信用卡纠纷案 |
| [Gist] | | 【裁判要旨】 |
| The Contract on Issuance and Use of Credit Card (the “Credit Card Contract”) between the issuing bank and the cardholder provided that the bank may adjust the credit limit basing on changes in the cardholder's credit standing, and such provision is held by the Court as valid. To determine whether any agreed change occurred to the credit standing of the cardholder, comprehensive considerations shall be given to factors such as the number, amount and time of overdue repayments as well as repayment of debts of other credit cards by the cardholder. | | 信用卡领用合约中，当事人关于发卡行有权根据持卡人资信状况变化调整信用卡额度的约定有效。持卡人是否发生约定的“资信状况变化”，可以从案涉信用卡逾期还款次数、逾期还款金额和时间以及持卡人其他信用卡还款情况等方面，综合予以判定。 |
| [Facts] | | 【基本案情】 |
| On September 6,2012, Qiu A (Party B) applied to Credit Card Center A (Party A) for credit card and completed relevant application form. In this application form, Qiu A handwrote “I have carefully read all the application materials, fully known and understood relevant information of the Credit Card Product, and am willing to abide by the Credit Card Contract”, and signed the application form for confirmation. Meanwhile, the Credit Card Contract in Article 2.1 provided that Party A may adjust the credit limit at any time with immediate effect basing on changes in Party B's credit standing and notify Party B via telephone, in writing or by other means. After the Credit Card Contract was executed, Credit Card Center A issued a credit card to Qiu A with a credit limit of 20,000 yuan. The cardholder, however, failed to pay off the credit card debt on time in November 2012, March, June and September 2013, February and March 2014, May and June 2017, and March 2018 respectively. In addition, he also delayed repayment of debts of the credit cards issued by four other banks. On March 29, 2018, Credit Card Center A notified Qiu A with a short message that the credit limit has been lowered to RMB10,000. Qiu A then brought a lawsuit to the Court, petitioning for restoring the credit limit to RMB20,000. | | 2012年9月6日，邱某（乙方）向甲信用卡中心（甲方）申请办理信用卡并填写申请表。申请表上，邱某手写“本人已阅读全部申请材料，充分了解并清楚知晓该信用卡产品的相关信息，愿意遵守领用合同的各项规则”，并且签名确认。关于信用额度调整，《领用合约》第二条第一款约定：“甲方有权根据乙方资信状况的变化随时调整其信用额度并以电话、书面或其他方式通知乙方。该调整一经甲方作出即对乙方具有约束力。”合同签订后，甲信用卡中心向邱某发放信用卡，信用额度为2万元。2012年11月，2013年3月、6月、9月，2014年2月、3月，2017年5月、6月，2018年3月，案涉信用卡均发生逾期还款。原告持有的其他四家银行信用卡也在2017年存在多次逾期还款。2018年3月29日，甲信用卡中心以短信方式通知邱某调减信用额度至1万元。邱某遂诉至法院，要求恢复案涉信用卡原有信用额度2万元。 |
| [Judgement] | | 【裁判结果】 |
| On January 10, 2019, the Shanghai Pudong New Area People's Court delivered a civil judgement ([2018] Hu 0115 Min Chu No.52721) rejecting the petition of Qiu A. Neither party appealed. The judgment has already come into force. | | 上海市浦东新区人民法院于2019年1月10日作出（2018）沪0115民初52721号民事判决：驳回邱某的诉讼请求。判决后，双方当事人均未上诉，判决已发生法律效力。 |
| [Reasoning] | | 【裁判理由】 |
| The Court held that, first of all, Article 2.1 of the Credit Card Contract complies with Article 52 of the Measures for the Supervision and Administration of the Credit Card Business of Commercial Banks. Indeed, such contractual and legal provisions have not specified the criteria for change in credit standing, however, in this case, that Qiu A repeatedly failed to timely pay off the debts of the credit cards issued by Credit Card Center A and other banks, constitutes obviously a “change in credit standing” in the opinion of any reasonable person. Secondly, although the lowering of the credit limit somehow restricted Qiu A's right to trade through the credit card, it also reduced the credit risks to which Qiu A with a worsening credit standing might be exposed, and decreased the interest income otherwise may be obtained by Credit Card Center A. This lowering of credit limit was, therefore, not obviously unfair to Qiu A. Thirdly, the adjustment of credit limit under Article 2.1 of the Credit Card Contract involves the advance payment obligation of the issuing bank, rather than limiting or waiving its liabilities. Besides, the adjustment may be either downwards or upwards. Therefore, the Court did not support Qiu A's claim that Article 2.1 is a standard liability exemption clause while Credit Card Center A failed to highlight or explain it, and held that Credit Card Center A may unilaterally lower the credit limit according to the Credit Card Contract. | | 法院认为：首先，《领用合约》第二条第一款符合《商业银行信用卡业务监督管理办法》第五十二条的规定。虽然上述约定和法律规定未明确资信状况的具体标准，但是就本案而言，邱某出现的案涉信用卡还款逾期以及其他银行信用卡还款逾期，显然属于“资信状况变化”的通常理解范围。其次，甲信用卡中心由此调减邱某信用额度，固然在一定程度上限制了邱某持卡交易的权利，但亦相应地减少了邱某在资信状况恶化情况下、继续持卡交易后无力还款的信用风险，同时该调减也限制了甲信用卡中心的利息收益，故该调减对邱某而言并未显失公平。第三，《领用合约》第二条第一款约定的信用额度调整涉及的是发卡银行承担垫付义务的范围，而非发卡银行的责任限制或者免除，并且该调整既包括调减也包括调高，故法院对邱某提出的甲信用卡中心对免责格式条款未提示和说明的理由亦不予支持。综上，甲信用卡中心有权依据《领用合约》的约定单方调减邱某案涉信用卡的信用额度。 |
| [Significance] | | 【裁判意义】 |
| As the credit policies change and the financial consumers' consciousness of defending their rights enhances, the number of the cases in which cardholders petition for restoring credit limits continues to rise. From the perspective of administrative supervision and risk prevention and control, the provision on adjustment of credit limit in this case in not in violation of any rule. As to judicial interpretation of “credit standing”, the Court, under the guiding principle of good faith, offered the reference criteria for judicial review by taking in to account the number, amount, time and method of overdue repayments to answer the question of whether credit standing changed or not. The judgement embodied the principle of good faith and the spirit of contract in credit card transactions, and will help regulate the financial trading and improve the awareness of financial consumers to honor the contracts and maintain good credit. | | 随着信贷政策变化以及金融消费者维权意识的增强，持卡人要求恢复信用卡授信额度的案件持续增多。从行政监管、风险防控角度而言，案涉调整授信额度条款并未违规。针对“资信状况”的解释问题，法院以诚信为价值导向，从还款逾期次数、逾期金额和时间、还款方式等角度，判断资信状况是否发生变化，提供了“资信状况变化”的审查判断参考标准。本判决体现了信用卡交易的诚信原则和契约精神，有利于提高金融消费者的守约意识和信用意识，规范金融交易行为。 |
| Case No.3 | | 案例三 |
| Principles of Judicial Discretion on The Apparent Examination Obligation of Advising Banks under UCP600 | | UCP600下信用证通知行表面审核义务的司法裁量原则 |
| - a case of Company A v. Bank B on letters of credit disputes | | --甲公司诉乙银行信用证纠纷案 |
| [Gist] | | 【裁判要旨】 |
| According to the Uniform Customs and Practice for Documentary Credits (UCP600), advising banks have the obligation to examine the apparent authenticity of credits, and their confirmation of such authenticity should be based on reasonable grounds. A reasonable and valid way to examine such authenticity is to check with issuing banks through encrypted SWIFT messages (SWIFT being the message system of the Society for Worldwide Interbank Financial Telecommunication). If a SWIFT message contains any ambiguous content, the context and purpose of sending the message should be considered to determine whether an advising bank's understanding is reasonable or not, and the understanding of a presenting bank or a negotiating bank may also be referred for such determination. | | 根据《跟单信用证统一惯例》（UCP600），通知行仍负有审核信用证表面真实性的义务，其确认表面真实性应基于合理理由。以密押SWIFT电文（环球同业银行金融电讯协会的电文系统）向开证行求证属于合理有效的审核方式。SWIFT电文内容有歧义时，应当根据电文发送背景和目的判断通知行的理解是否合理。交单行、议付行对同一电文内容的理解可用于横向比较通知行的理解是否合理。 |
| [Facts] | | 【基本案情】 |
| Bank B (Advising Bank) advised beneficiary Company A of an irrevocable documentary credit opened by an American bank (Issuing Bank). Later, Company A and Bank B successively received an amendment to such credit sent by mail. In order to verify the authenticity of the amendment, Bank B checked with the Issuing Bank by a SWFIT message. The Issuing Bank confirmed the authenticity of the two credits (originally written as “L/C's”) and requested the Advising Bank to advise the beneficiary as soon as possible. After that, Bank B advised Company A of the amendment. Company A went through the export formalities in accordance with the amended L/C and entrusted Bank C (Presenting Bank) to present the documents to the Issuing Bank for payment. The Issuing Bank, however, refused to pay on the grounds of discrepancies between the presented documents and the credit and said that no amendment had been made to the credit. The goods exported by Company A were, therefore, detained at the destination port and could not be returned or transferred to another port. Company A brought a lawsuit, petitioning for compensation by Bank B for the loss of payment. | | 乙银行（通知行）向受益人甲公司通知了一份由美国某银行（开证行）开立的不可撤销跟单信用证。甲公司与乙银行先后收到邮件寄送的修改件，为核实修改件的真实性，乙银行向开证行发送SWFIT电文进行询问。开证行在回复中确认系争两份信用证（原文用语为“L/C'S”）的真实性，并请通知行尽快通知到受益人。之后，乙银行向甲公司通知了修改件。甲公司根据修改后的信用证办理货物出口运输手续并委托丙银行（交单行）向开证行交单请付。开证行以单证不符为由拒付，并表示未对信用证进行过修改。甲公司出口的货物因信用证遭拒付被滞留目的港，无法办理退运或转港手续，后诉至法院，请求判令乙银行对其货款损失承担赔偿责任。 |
| [Judgement] | | 【裁判结果】 |
| On September 24, 2017, the Shanghai No. 1 Intermediate People's Court (the “Court”) delivered a civil judgment ([2017] Hu 01Min Chu No. 227), rejecting the claims of Company A. Company A lodged an appeal. On December 3, 2018, the Shanghai High People's Court delivered a civil judgment ([2017] Hu Min Zhong No. 408) to dismiss the appeal and uphold the original judgment. | | 上海市第一中级人民法院于2017年9月24日作出（2017）沪01民初227号民事判决：驳回甲公司的诉讼请求。宣判后，甲公司提出上诉。上海市高级人民法院于2018年12月3日作出（2017）沪民终408号民事判决：驳回上诉，维持原判。 |
| [Reasoning] | | 【裁判理由】 |
| The Court held that, according to Article 9 of the UCP600, by advising the credit or amendment, the advising bank signifies that it has satisfied itself as to the apparent authenticity of the credit or amendment. This indicates that an advising bank has the obligation to check the apparent authenticity of credits. Compared with the previous version UCP500, the UCP600 abandoned the expression that “the advising bank shall take reasonable care to check the apparent authenticity of the Credit” as the ambiguous phrase “reasonable care” is open to different understanding in different countries and regions; however, there is no doubt that an advising bank shall have reasonable grounds to “satisfy itself as to the apparent authenticity of credits”. | | 法院认为：《跟单信用证统一惯例》（UCP600）第九条规定，通知行通知信用证及修改的行为表示其已确信其表面真实性，由此可见，通知行负有审核信用证表面真实性的义务。与前一版本即UCP500相比，UCP600未使用“通知行应合理审慎地审核信用证表面真实性”这一表述，是为避免“合理审慎”这一弹性较大的用语在不同国家和地区产生不同理解，但毫无疑问，通知行“确信信用证表面真实性”仍应基于合理理由。 |
| The examination by an advising bank on credits and amendments is simply limited to their apparent authenticity, and should be done in a manner consistent with the international banking practice. An examination can be considered reasonable and valid as long as it is carried out with the due care and caution that can be expected of a reasonable bank employee in charge of the L/C business with necessary expertise and common sense, and checking with the issuing bank by an encrypted SWIFT message should be recognized as such a reasonable and valid examination. The major issue of this case lays in the meaning of “L/C's” in the disputed SWIFT messages – whether it refers to the original letter of credit or the amendment thereto. In the context of the disputed SWIFT messages, “L/C”, as an abbreviation for letter of credit, sometimes also refers to the amendment to the letter of credit. In addition, the “'s” of “L/C's” sometimes denotes the possessive case of L/C and sometimes the plural form thereof. When a SWIFT message contains any ambiguous content, the context and purpose of sending the message should be considered to determine whether the advising bank's understanding is reasonable or not. Bank B advised Company A of the credit and explicitly requested the Issuing Bank to confirm the authenticity of the amendment to the credit, while the Issuing Bank did not give a negative reply to whether the credit was amended or whether the amendment was mailed; instead, it confirmed the authenticity of the two “L/C's” and requested Bank B to advise the beneficiary of the two “L/C's” as soon as possible. In light of such facts, Bank B had reasons to believe that the reply of the Issuing Bank confirmed the authenticity of the amendment to the credit. Bank C, as the Presenting Bank, interpreted the above message in the same way as Bank B. The similar understanding of the two banks also indicates that Bank B is free of material fault in examining the apparent authenticity of the amendment to the credit. To sum up, Bank B had reasonable grounds to confirm the apparent authenticity of the amendment, and it's reasonable for Bank B to advise Company A of the amendment. | | 通知行对信用证及修改的审核限于表面真实性，审核方式应符合国际银行实务惯例，以一个理性银行信用证业务人员运用与其专业知识及普通常识能够做到的注意和谨慎为参考，以密押SWIFT电文向开证行求证属于合理有效的审核方式。本案争议的主要内容是SWIFT电文中“L/C'S”的含义，究竟是指信用证还是信用证的修改件。“L/C”是信用证（Letter of Credit）的缩写，但在系争SWIFT电文中，“L/C”有时也指信用证的修改件。另外，“L/C'S”中的“'S”有时表示所属关系，有时表示复数。当SWIFT电文内容有歧义时，应当根据电文发送的背景和目的来判断通知行的理解是否合理。乙银行已将信用证通知甲公司，并明确要求开证行确认信用证修改件的真实性，而开证行回复内容中对信用证有无修改、是否邮寄过信用证修改件均未作出否定表示，而是确认两份“L/C'S”的真实性并请乙银行尽快将两份“L/C'S”通知到受益人。在此情况下，乙银行有理由相信开证行的上述回复电文确认了信用证修改件的真实性。作为交单行的丙银行对上述电文作出了与乙银行相同的理解，可以横向比较乙银行在审核信用证修改件时不存在重大过错。综上，乙银行确认系争信用证修改件的表面真实性具有合理的理由，其向甲公司通知该修改件并无不当。 |
| [Significance] | | 【裁判意义】 |
| As the Belt and Road Initiative unfolds and China constantly picks up its pace of opening up, the international L/C business, as an important means of payment for cross-border trade, is expected to see a growth in its volume along with the expansion in the scale of cross-border trade. Compared with the UCP500, the UCP600 abandoned the expression of “reasonable care”, which in practice has led to the dispute as to “whether advising banks are still obligated to check, and if yes, how to check the apparent authenticity of credits”. This case is a model case. As the UCP600 requires an advising bank to “satisfy itself as to the apparent authenticity” on reasonable grounds, they are still obliged to check such apparent authenticity, in a way consistent with the industry practices and with “the due care and caution that can be expected of a reasonable bank employee in charge of the L/C business with necessary expertise and common sense”. The SWIFT message system is adopted as an international standard language by banks to exchange data with each other, and also serves as the main tool to issue credits in an electronic way; therefore, verifying the authenticity of credits by sending encrypted SWIFT messages should be recognized as a reasonable way to examine the apparent authenticity of the credits. Such messages are usually composed of many abbreviations, which often leads to ambiguity. In that case, a reasonable interpretation should be made from the perspective of advising banks in combination with the purpose and background of these messages, and the understanding of the same message by other banks may also be referred to determine whether the understanding of the advising bank is reasonable. The Court in this case, exercised judicial discretion in response to the dispute over the apparent authenticity examination obligation of advising banks, provided a useful guide for the apparent authenticity examination practice by advising banks, thus guarded the sound development of the international credit business. | | 随着一带一路倡议持续推进以及我国对外开放步伐不断加快，作为跨境交易支付重要手段的国际信用证业务，将伴随跨境交易规模的扩大而增多。相较UCP500而言，UCP600就信用证通知不再使用“合理审慎”的表述，在实践中引发了“通知行是否仍需审核以及如何审核信用证表面真实性”的争论，本案即为其中的典型代表。由于UCP600要求通知行“确信表面真实性”基于合理理由，因此其仍负有相应的审核义务，审核的方式应当符合行业惯例，同时尽到“一个理性银行信用证业务人员运用与其专业知识及普通常识能够做到的注意和谨慎”。SWIFT电文系统是国际银行间数据交换的标准语言，也是电开信用证的最主要方式，因此以加密SWIFT电文求证信用证的真实性属于合理的审核方式。电文传输常使用省略语，难免会发生歧义，此时需以通知行视角为出发点，结合发文目的和背景作合理解释。同一信用证业务中的其他银行对同一电文的理解，可以横向比较通知行的理解是否合理。本案裁判所阐释的司法裁量原则，回应了信用证实务中关于通知行审核义务的争论，为通知行规范审核行为提供了有益借鉴，为国际信用证业务的健康发展提供了良好的司法保障。 |
| Case No.4 | | 案例四 |
| Banks shall Reach Agreement with Customers on Payment Limits of Electronic Ciphers and Disclose to Customers Relevant Risks | | 银行应与客户约定电子密码器支付限额并进行风险揭示 |
| - a case of Shi A v. Bank A on dispute over savings contract | | --施某诉甲银行储蓄存款合同纠纷案 |
| [Gist] | | 【裁判要旨】 |
| Due to absence of monitoring over the counter operation, the electronic banking business comes with a high risk of abnormal fund transfer. Customers have the obligation to safekeep their own accounts and passwords, and shall bear consequent losses alone if they divulge their passwords due to their own faults, provided that the banks have technically fulfilled their obligations to review the operations and warn the customers of relevant risks. On the other hand, when activating the electronic banking service, financial institutions should clearly disclose to the customers the risks of mobile banking and online banking as well as differences between the two, notify and make available the payment limit option to customers, and especially shall remind them of the risk of large fund transfer through electronic cipher. A financial institution which fails to negotiate with or adequately discloses to its customers important matters that affect the safety of its customers' funds, should be held liable accordingly. | | 电子银行业务因缺乏柜台操作监控环节，存在资金非正常划转的高风险。客户具有账号信息和密码保管义务，在银行已经尽到各技术环节审核提示义务后，因自行泄露密码导致损失的，由客户自担。同时，金融机构在为客户开通电子银行业务时，应明示手机银行、网上银行的风险与区别，告知并赋予客户对外支付限额选择权，特别提示电子密码器高额转账风险。金融机构就影响客户资金安全的重要内容未协商或披露不充分的，需承担相应责任。 |
| [Facts] | | 【基本案情】 |
On February 6, 2010, Shi A applied to Bank A for opening a financial management account and received a card with the number ending with 0923. Afterwards, Shi received a series of calls from a self-called police officer, who asked Shi to assist the police in handling a case by transferring all the funds under his name into his account opened with Industrial and Commercial Bank of China(the “ICBC account”), and asked him to apply for an electronic cipher for freezing the funds. On December 28, 2016, Shi visited the business hall of Bank A, asked one of the bank clerks how to activate the online banking service. Under the guidance of the clerk, Shi, operating at a smart banking terminal, activated the online banking service and the mobile banking service with his financial management card, and received an electronic cipher and an electronic banking registration slip. On the same day, Shi made several transfers with a total amount of RMB 418,791.98 from his ICBC account to an account belonged to someone else. Afterwards, Shi successively transferred his other deposits to his financial management account opened with Bank A over the counter or through automatic teller machines, and then transferred all the money to the above-mentioned account of someone else through the mobile banking service. In three days, i.e. from 28 to 30 December, Shi transfer a total of RMB 1,253,188 in 27 times, with the amount of each transfer no more than RMB 50,000. On December 31 of the same year, Shi reported the case to the Guangzhong Road Police Station, Hongkou Branch of the Shanghai Municipal Public Security Bureau. On January 5, 2017, the Hongkou Branch issued to Shi a notice of opening a criminal investigation into the suspected fraud. Later, Shi sued Bank A for compensation.
．．．．．． | | 2010年2月6日，施某到甲银行处申请开设理财金账户，领取尾号为0923理财金账户卡。之后，施某连续接到自称警方人员的电话，要求施某协助警方办案，将名下全部资金归集到工商银行账户，并要求施某办理电子密码器以便冻结资金。2016年12月28日，施某到甲银行营业场所的智能终端机处，向甲银行工作人员表示要开通网上银行，在甲银行工作人员指导下，施某以理财金账户卡在智能终端机上开通了网上银行和手机银行，领取了电子密码器和电子银行注册回单。当日，施某工商银行账户的418，791.98元分多次转出至案外人账户。此后，施某将其他存款通过柜面转账和ATM机操作，先后归集到涉案账户。款项入账后，经手机银行操作陆续转出至案外人账户。从12月28日起至12月30日止，上述转款行为持续三天，转出金额每次不超过5万元，共计27次，总金额1，253，188元。同年12月31日，施某到上海市公安局虹口分局广中路派出所报案。2017年1月5日，虹口分局向施某出具立案告知书，以涉嫌诈骗罪立案。此后，施某起诉要求甲银行承担赔偿责任。
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