Zhang v. a bank credit card center, a credit card dispute case
-- How to find a balance between respecting the autonomy of the parties and protecting the interests of the weaker parties in the financial and legal relationship
keyword
- civil
- Credit Card Disputes
- Standard Terms
- Autonomy of will
- Financial Consumer Rights
Basic facts of the case
Plaintiff Zhang claimed that the plaintiff was a cardholder of a bank credit card, and the plaintiff should pay off the arrears every month according to the repayment amount specified in the bill and the due date of repayment. At the same time, the plaintiff bound the credit card to his bank savings card, that is, deducted the corresponding RMB from his savings card account on the day after the due date of repayment. According to the credit card statement dated August 10, 2013 provided by the credit card center of the defendant bank, the plaintiff should repay the monthly repayment amount of RMB 40,762.10 on August 30, 2013. From 21:41 to 21:53 on August 30, 2013, the plaintiff deposited a total of 38,300 yuan into the plaintiff's credit card through an ATM for repayment, together with the amount of 3,289.03 yuan in the plaintiff's savings card account, totaling 41,589.03 yuan, which was sufficient to pay the credit card repayment amount for that month. However, the plaintiff learned the next day that the defendant had not only deducted $38,300 from the credit card, but also deducted the balance of $3,289.03 from the plaintiff's savings card account, deducting the amount owed by the plaintiff from the plaintiff for the month of $40,762.10, and the defendant had deducted an additional $826.93. The plaintiff then enquired about the situation with the defendant, but the defendant insisted that the bank was not at fault and did not communicate with the plaintiff about the repayment. Later, after several negotiations between the plaintiff and the defendant, the defendant returned the 826.93 yuan deducted from the plaintiff's savings card account on September 2. The plaintiff believed that the defendant's act of deducting the balance of the plaintiff's account of 826.93 yuan without reason seriously infringed the plaintiff's property rights, and the defendant returned the plaintiff's money only after the plaintiff's repeated negotiations, so the plaintiff sued the court and requested an order: 1. the defendant to pay 0.4 yuan for three days on the part of the over-deducted deposit, and 2) the defendant to bear the litigation costs. Later, the plaintiff changed its claims: 1. The defendant paid three days interest of 0.4 yuan for the over-deducted deposit amount and 2,478.90 yuan for three times the occupied funds; 2. The defendant apologizes in writing; 3. The defendant modified the credit card transfer system to avoid the recurrence of similar malicious embezzlement of his own and other customers' funds, and to avoid causing similar infringement to unspecified members of the public; 4. The defendant has obtained illegal benefits from an unspecified public through such malicious embezzlement of public savings, and requests the court to impose punitive damages; 5. The defendant bears the litigation costs and the plaintiff's attorney's fees of RMB 3,000. During the trial, the plaintiff made it clear that the basis of the claim in this case was the tortious relationship.
The credit card center of the defendant bank argued that: 1. In terms of the subject, the dispute raised by the plaintiff was a dispute over the performance of the contract, and the "Credit Card Acquisition Agreement" was a clause reached between the plaintiff and the Shanghai branch of a bank, so the defendant should be changed to the Shanghai branch of a bank; 2. The plaintiff had exceeded the bank's business hours on the day when the deposit was made, resulting in overdue arrears, and the bank's end of business on the day and the end of business on the next day were one day's calculation cycle, so the plaintiff could not repay the loan on the same day, and the time of the funds in transit was an objective norm, and the plaintiff should have known that the defendant did not require the plaintiff to bear the responsibility for overdue repayment for the plaintiff's overdue repayment; 3. The plaintiff did not deposit the money into the agreed account, and the repayment of the agreed account is an agreement to exclude other accounts, and if the plaintiff wants to cancel the repayment of the agreed account, it should contact the bank to modify it, and the plaintiff should perform the duty of care from the principle of good faith and repay the loan one day earlier on the last repayment date; 4. The plaintiff can withdraw the funds in its credit card account at any time, and the defendant does not constitute infringement, but the defendant has paid 0.4 yuan of interest during the mediation of the litigation and mediation center; 5. Regarding the plaintiff's additional claim, the defendant is required to pay 2,478 yuan, and the defendant believes that the defendant did not occupy the plaintiff's funds, and the losses mentioned in the Consumer Rights and Interests Protection Law are three times the amount of the loss, which is inconsistent with the circumstances of this case, and the plaintiff in this case has not suffered losses; 6. The defendant did not recognize the lawyer's fees in this case.
After trial, the court ascertained that the plaintiff applied for a credit card on November 30, 2011, agreed to apply the Credit Card Usage Agreement, Credit Card Articles and User Guide, and used a bank savings card as the agreed account to repay the loan, and the plaintiff had been using the credit card issued by the defendant since then, with the bill date being the 10th of each month and the repayment date being the 30th of each month. The credit card statement dated 10 August 2013 showed that the plaintiff was due to repay the full amount of $40,762.10 by 30 August 2013. There was still $3,289.03 left in the plaintiff's savings card account bound for repayment, so the plaintiff deposited a total of $38,300 into the credit card account through an ATM on seven occasions between 21:41 and 55 on August 30, 2013, and received a repayment SMS notification from 955XX on the spot. At 8:09 a.m. on August 31, 2013, the defendant's system automatically deducted RMB 3,289.03 from the savings card for repayment. The plaintiff believed that 826.93 yuan should be left in the savings card account after repayment, so the plaintiff negotiated with the defendant, and the defendant transferred 826.93 yuan from the credit card account to the savings card account on September 2.
It was also ascertained that on May 4, 2014, the defendant had transferred 0.4 yuan to the plaintiff's savings card account.
It is further ascertained that Article 5 of the Credit Card Articles of Association stipulates that the "statement date" refers to the date on which the Bank summarizes the accumulated unpaid principal of consumption transactions, cash withdrawal transactions and fees of the cardholder on a monthly basis, settles the interest, and calculates the repayment amount payable by the cardholder for the current period. "Payment Due Date" means the last date on which the Cardholder shall repay the full amount due or the minimum amount as prescribed by the Bank. Article 26 of the Credit Card Articles stipulates that "if a cardholder chooses the agreed account repayment method, the Bank will deduct the corresponding amount from the deposit account opened with the Bank designated by the cardholder on the due date for repayment to repay the outstanding amount of the credit card account". Article 53 stipulates that "the cardholder shall use the credit limit approved by the Bank and repay the full repayment amount or the minimum repayment amount in the corresponding currency before the due date (inclusive)." If the cardholder chooses to repay the loan in the agreed account, it shall retain sufficient balance in the designated repayment account." Article 1 of the "Repayment" of the Credit Card Acquisition Agreement stipulates that "Party A may choose to repay the arrears incurred by Party B using the credit card at Party B's business outlets, using its self-service equipment, or through online banking, etc., in the corresponding currency, or by agreeing on account repayment." When Party A chooses to repay the agreed account (including the repayment of foreign exchange purchase in the agreed account), Party B is authorized to deduct the amount in the agreed manner every month on the due date of repayment listed in the statement. If the available balance of the agreed account is less than the amount of deduction, Party B has the right to deduct or refuse to deduct according to the available balance." The "Repayment Service" of the "User Guide" stipulates that "our bank provides you with a variety of repayment channels such as agreed accounts, self-service terminals, online banking, mobile banking, 955XX telephone banking, outlets, etc., so that you can fully enjoy the convenience and speed of repayment", and introduces the above repayment methods in detail, among which the introduction of repayment of the agreed account shows that "if the balance in the agreed repayment account is insufficient to pay the amount due for the current period, our bank will deduct as much as you want".
On October 30, 2014, the Shanghai Pudong New Area People's Court rendered the (2014) Pu Min Liu (Shang) Chu Zi No. 5339 Civil Judgment: rejecting the plaintiff Zhang's claim. Zhang was dissatisfied with the above judgment and appealed. On February 15, 2015, the Shanghai No. 1 Intermediate People's Court rendered the (2015) Hu Yi Zhong Min Liu (Shang) Zhong Zi No. 54 Civil Judgment: rejecting the appeal and upholding the original judgment.
Reasons for the Adjudication
The effective judgment of the court held that the main points of dispute in this case were: first, whether the defendant should bear tort liability; Second, whether the defendant should bear the other liabilities claimed by the plaintiff.
With regard to the first issue in dispute, the court held that it could be analysed from the following two aspects:
First, from the perspective of repayment methods, neither the Credit Card Usage Agreement nor the User Guide exclude other repayment methods other than "agreed account repayment". According to the understanding of ordinary people, due to factors such as the balance in the credit card account without interest, and the handling fee for cash withdrawal, the original intention of depositing money into the credit card account is generally to repay the credit card debt, and the evidence provided by the plaintiff (the SMS reminder sent by 955XX) also shows that the plaintiff's act of depositing money into the credit card account at that time was called "repayment". Therefore, the plaintiff can also take the initiative to repay the loan through the self-service terminal while choosing to repay the loan in the agreed account. From the point of view of the repayment time, the last repayment date of the credit card in this case was the 30th of each month, but none of the relevant agreements stipulated the last date of repayment, nor did it stipulate that the repayment should be made "before the business hours of the business outlets" as stated by the defendant. For ordinary cardholders, in the absence of an agreement in the contract and without the defendant's attention, it is impossible to clearly understand the bank's internal rules such as business hours and the failure of funds to arrive in transit, and the plaintiff has completed the repayment at any time before 24:00 on the 30th.
Second, the defendant deducted the balance in the savings card account at 8:09 a.m. on August 31, and if the defendant knew that there was a problem with the time of the funds in transit, the defendant should set up a certain amount of time starting from 24:00 on the previous day when setting up the automatic deduction of the system, and then deduct the funds after confirming whether the funds have arrived, or should clearly inform the cardholder in the contract of the last repayment time point of the last repayment date. In view of the fact that the defendant had paid the plaintiff an interest of 0.4 yuan for three days as required by the plaintiff, the act was voluntarily performed by the defendant and was not contrary to the law, so the court confirmed it.
With regard to the second point of dispute, the court held that the plaintiff's claim against the defendant for compensation of three times that of RMB 826.93, i.e., RMB 2,478.90, in accordance with Article 55 of the Law on the Protection of Consumer Rights and Interests (2013), was not supported because the plaintiff had no evidence to prove that the defendant had committed fraud. With regard to the written apology, the defendant did not support the claim because it did not cause any physical or mental damage to the plaintiff, and the method of bearing the responsibility for the formal apology did not apply. With regard to the invalidity of the clause confirming the duplicate charge of the credit card, the plaintiff's claim was not supported because there was no clause on "duplicate charge" in the clause on the credit card submitted by the plaintiff and the defendant. With regard to the revision of the corresponding system and the imposition of punitive damages on the defendant, the plaintiff's qualifications as an entity did not meet the provisions of the Civil Procedure Law, which stipulates that "the organs and relevant organizations prescribed by law may file a lawsuit in the people's court for acts that harm the public interest, such as polluting the environment and infringing on the legitimate rights and interests of many consumers", are also not supported. However, the court also held that the plaintiff's conduct in the lawsuit was worthy of affirmation, and that for the convenience of credit card holders, the defendant should improve the system and method of the corresponding deduction system to the extent technically feasible, so as to develop the credit card business in a way that is more conducive to the cardholders.
Summary of the trial
1. From the perspective of financial institutions, standard clauses simplify business procedures, reduce contracting costs, and improve the efficiency of transaction activities, which can differentiate risks in advance, maintain transaction security, and estimate potential legal liabilities. The principle of autonomy of will is the most important basic principle in the field of private law, emphasizing the equality of subject status and freedom of will. In essence, both the principle of autonomy of will and the standard clauses serve the smooth and convenient nature of transactions, and the starting point of the two is the same. However, from the perspective of financial consumers, because the standard clauses exclude the possibility of consumer negotiation, in fact, it forms a coercion on consumers.
2. In financial transactions, it is necessary not only to respect the autonomy of will embodied in the standard clauses, but also to protect financial consumers in order to maintain substantive fairness. Court rulings should protect financial consumers' right to know and should pay attention to the cost effect of judicial regulation, which can guide financial institutions to clarify contract terms, change SMS notification templates, improve system clearing operations, and train employees in professional services, so as to promote financial institutions to treat more customers with better services.
Associate indexes
Articles 120, 1165 and 1166 of the People's Republic of China Civil Code (Articles 3, 6 and 7 of the People's Republic of China Tort Liability Law, which came into force on July 1, 2010, are applicable in this case)
Article 90 of the Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China (Article 2 of the Several Provisions of the Supreme People's Court on Evidence in Civil Proceedings, which came into effect on April 1, 2002, applies in this case)
Article 67, paragraph 1, of the People's Republic of China Civil Procedure Law (Article 64, paragraph 1 of the People's Republic of China Civil Procedure Law, implemented in 1991 is applicable in this case)
First instance: Shanghai Pudong New Area People's Court (2014) Pu Min Liu (Shang) Chu Zi No. 5339 Civil Judgment (October 30, 2014)
Second instance: Shanghai No. 1 Intermediate People's Court (2015) Hu Yi Zhong Min Liu (Shang) Zhong Zi No. 54 Civil Judgment (February 15, 2015)