No. 7 of Ten Model Cases Involving the Protection of Consumer Rights Issued by the Supreme People's Court, and White Paper No. 7 of Status of the Safeguarding of Consumer Rights by the People's Courts (2010-2013) Issued by the Supreme People's Cour: Liu Zhongyun v. Hengyang Branch of Bank of China Co., Ltd. and Hengyang Branch of China Construction Bank Co., Ltd. (Dispute over compensation for property damage)

最高人民法院公布10起维护消费者权益典型案例之七、最高法院发布《2010-2013年人民法院维护消费者权益状况》白皮书之七：刘中云诉中国银行股份有限公司衡阳分行、中国建设银行股份有限公司衡阳市分行财产损害赔偿纠纷案

【法宝引证码】

Type of Dispute: Civil--＞Property
Legal document： Judgment
Procedural status： Trial at Second Instance

[Key Terms] ATM Machine ; mandate relationship ; relationship of savings contract

[核心术语] ATM机;委托代理关系;储蓄存款合同关系

[Disputed Issues] Where a card holder's card number and password are stolen when using ATM machine for withdrawal, who shall assume the liability for the loss thus caused, the bank where the ATM machine is located or the card-issuing bank?

[争议焦点] 持卡人在使用ATM机取款时被窃取银行卡号及密码，由此产生的损失应由ATM机所在的银行还是提供银行卡的银行来承担？

[Case Summary] The bank where the ATM machine is located and the card-issuing bank is a mandate relationship that is the bank where the ATM machine is located is an agent and performs its obligation of paying deposit. The principal shall assume the responsibility for the agent's civil legal act within the agent authority. The card-issuing bank shall assume the responsibility for the bank's deposit payment where the ATM machine is located. Furthermore because of the relationship of savings contract between the card-issuing bank and the card holder...

[案例要旨] ATM机所在的银行与提供银行卡的银行之间应属于委托代理关系即ATM机所在的银行作为代理人代为履行支付存款的义务。对于代理人在代理权限内所实施的民事法律行为应由被代理人承担责任。提供银行卡的银行应对ATM机所在的银行的支付存款行为承担责任。此外...

No. 7 of Ten Model Cases Involving the Protection of Consumer Rights Issued by the Supreme People's Court, and White Paper No. 7 of Status of the Safeguarding of Consumer Rights by the People's Courts (2010-2013) Issued by the Supreme People's Cour: Liu Zhongyun v. Hengyang Branch of Bank of China Co., Ltd. and Hengyang Branch of China Construction Bank Co., Ltd. (Dispute over compensation for property damage)		最高人民法院公布10起维护消费者权益典型案例之七、最高法院发布《2010-2013年人民法院维护消费者权益状况》白皮书之七：刘中云诉中国银行股份有限公司衡阳分行、中国建设银行股份有限公司衡阳市分行财产损害赔偿纠纷案
—Where the number and password of a UnionPay card of a consumer are duplicated by others while the consumer withdraws money and the deposit of the consumer in the card is stolen by others, the bank that issues the card should assume the compensatory liability.		——消费者取款时银联卡号及密码被他人复制，卡上存款被取走，由提供银联卡的银行承担赔偿责任
1. Basic Facts		（一）基本案情
Liu Zhongyun opened a UnionPay card account in the Hengyang Branch of China Construction Bank (hereinafter referred to as the “Hengyang Branch of CCB”). On January 30, 2009, he went to withdraw money from an ATM on Jiefang Road, Hengyang City installed by the Hengyang Branch of CCB, but failed. He then went to the neighboring ATM of the Hengyang Branch of Bank of China (hereinafter referred to as the “Hengyang Branch of BOC”) and withdrew 2,500 yuan. There was 41,395.49 yuan left in his account after the withdrawal. Unfortunately, the ATM was illegally rigged with a camera, and when Liu Zhongyun withdrew money, his bank card information was duplicated by others using the video data. On the following day, money was withdrawn by others from Liu Zhongyun's bank card on the ATM of other banks ten times, 2,000 yuan each time and 20,000 in total, with out-of-network charges paid ten times, 2 yuan each time and 20 yuan in total. The last transfer made on the ATM from his account was in the amount of 21,300 yuan, with transfer charges of 52 yuan paid. So far, there had been 11 transactions in Liu Zhongyun's bank card account through the ATM of other banks in one day, the volume of transactions including bank charges amounted to 41,372 yuan, and there was only 23.49 yuan left in the account. Liu Zhongyun filed a lawsuit with the People's Court of Yanfeng District, Hengyang City, Hunan Province, claiming that the Hengyang Branch of BOC and the Hengyang Branch of CCB should compensate him for the stolen deposit of 41,372 yuan and the interest thereon.		刘中云在建行衡阳分行办理银联卡一张。2009年1月30日，其到建行衡阳分行设立在衡阳市解放路网点的自动取款机取款未果，便到隔壁中行衡阳分行网点的ATM机取款2500元，其账户尚有存款余额41395.49元。取款时该取款机已被他人非法安装了摄像头，利用摄像资料复制了刘中云的银行卡信息。次日，刘中元的银行卡被他人在他行ATM机上相继取款10次，每次取款2000元，共计20000元，并支付手续费10次，每次2元，共计20元。最后经ATM机转账一笔，金额21300元，支付转账手续费52元。至此，刘中云的银行卡在同一天内，经他行ATM机发生业务交易共11次，包括手续费共发生交易额41372元，账户存款余额只剩23.49元。刘中云遂向湖南省衡阳市雁峰区人民法院起诉，请求中行衡阳分行、建行衡阳分行赔偿41372元存款及利息。
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