【作者】 许保华；

【导师】 赵新华；

【作者基本信息】 吉林大学 ， 民商法学， 2006， 硕士

【摘要】 由于磁条式银行卡易被伪造和冒用,使得未经授权的电子资金划拨不断发生,由此而造成的系统内的损失承担也成为一个难以解决的问题。笔者通过考察我国各发卡银行制定的银行卡章程及领用合同中确定损失分担的条款,发现这些条款违背了《合同法》第四十条的规定,违背了诚实信用原则,应当认定为无效。通过考察美、英和我国台湾地区的相关规定,结合笔者的分析,笔者认为应当本着保护持卡人利益的原则、有利于损失降低的原则、有利于损失分散的原则及降低诉讼成本的原则,制定我国的损失分担规则,损失主要由发卡银行承担,持卡人对其可能控制的风险造成的损失承担有限的责任。更多还原

【Abstract】 Electronic Funds Transfer(EFT) which began from 1960s can be divided into big quantum and small quantum electronic funds transfers, according to the magnitude of the money and service object. This paper is to research how to allocate the loss which caused by the third unauthorized party outside the system on the small quantum of electronic funds transfers. The small quantum of EFT(merely because of the convenience of writing, it will use the electronic funds transfers directly), whose service object is individual customers, mostly use the Bank Card as launch tool to institute direct debit or lend individual customers account. As electronic funds transfers mainly use the Bank Card as launch tool, however, the present Bank Card itself has inhesion defaults, such as easily be forged and illegally used, so there have many unauthorized electronic funds transfers, and then it becomes a problem that any country which want to develop it.The loss caused by the third party outside the system is that party, such loss should be beard by the third party, just for sustaining normal operation of the system of electronic funds transfers, when the third party disappears, the loss should be allocated among parties in the system. Because the requirement of fault liability or fair liability is that the loss caused by the actor, since there has no necessary relationship between the loss and the activity of the holder or the bank, so both of them merely took advantaged by the third party. Therefore, it could be request the holder or bank to bear obligation based on the fault liability or fair liability, but only to seek new regulation of allocate loss.更多还原