Dear Chief Justice:

Zhejiang Liqun Law Firm accepted the entrustment of Mr. Li and appointed us as the first instance agent in the case of the plaintiff Mr. Li suing the defendant Postal Savings Bank of China Co., Ltd. Taizhou Qiansuo Business Office and Postal Savings Bank of China Co., Ltd. Hengyang County Sub branch for the dispute over the deposit contract. After investigation and evidence collection, combined with court investigation, the agent hereby expresses the following opinion based on relevant facts and in accordance with relevant laws and regulations. We hope that the court will fully consider and adopt it:

1. The principle of sentencing before the people is not applicable to this case, and the defendant's claim to suspend the trial cannot be established in accordance with the law.

Firstly, there are conditions for the application of 'punishment before the people', Article 10 of the Supreme Court's "Provisions on Several Issues Concerning Suspicions of Economic Crimes in the Trial of Disputes" stipulates: "When the people's court discovers economic crime clues and materials that are related to this case but not in the same relationship as this case, they shall transfer the criminal suspect clues and materials to the relevant public security organs or inspection organs for investigation and punishment, and the economic dispute case shall continue to be tried, Only when civil legal acts and criminal acts involve the same legal relationship, the principle of punishment before the people applies. In this case, the plaintiff's request for deposit in the bank card is based on the deposit contract relationship, which is not the same legal relationship with the suspect's behavior of stealing bank funds by criminal means. As a deposit contract dispute, this case should be heard independently of the criminal case.

Secondly, The Reply of the Supreme People's Court on the Acceptance of Disputes over Savings Contracts Caused by the Leakage of Bank Savings Card Passwords and the Fraudulent Withdrawal of Deposits by Others as Civil Cases "clearly stipulates:" If another person forges a bank savings card to defraud a depositor of bank deposits, and the depositor files a civil lawsuit based on the savings contract concluded between them and the bank, the people's court shall accept it in accordance with the law According to the spirit of this reply and other relevant legal provisions, this case does not need to wait until the criminal case is heard before proceeding with the trial.

Finally, according to the principle of Privity of contract, the case can be directly filed for civil action according to the deposit contract relationship between the depositor and the bank. Because currency is a type of thing, when depositors deposit their funds in a bank, the ownership of the funds is transferred. Therefore, criminals infringe on the bank's financial funds, not the depositor's personal property. Therefore, regardless of the form of crime committed by criminals, they only steal the bank's assets rather than the depositor's assets. The issue of whether a third party has committed a crime and how to hold the third party accountable is not related to the civil substantive handling of this case. The trial of the civil part of this case does not involve the handling of the criminal part, and the defendant cannot exempt themselves from civil liability based on the criminal behavior of the third party.

Therefore, the defendant's claim to suspend the trial lacks legal basis, and this case should continue to be tried independently.

2. The bank has many mistakes in handling account opening and opening online banking services, and should bear the compensation responsibility for the plaintiff's loss of deposit principal and interest caused by this.

In this case, the defendant, as the custodian of funds in the savings contract, mainly committed the following faults:

(1) Failure to fulfill safety obligations. Banks should establish necessary security measures and provide necessary security reminders to ensure the safety of depositors during their business operations. According to Article 13 of the "Management Measures for Bank Card Business", "Commercial banks should have a secure and efficient computer processing system when conducting bank card business. In this case, the suspect took advantage of the loopholes in the online banking system of Postal Savings Bank to commit the crime, and Postal Savings Bank should bear the responsibility for violating the security obligations.

(2) In the process of handling business, the obligation to provide detailed explanations to depositors was not fulfilled. The banking business is complex and complex, and most people are inevitably confused when handling related businesses. Moreover, online banking is an emerging business in recent years that requires a lot of computer and business knowledge. When most people first come into contact with online banking business, they need careful instructions and guidance from the bank. The plaintiff visited the three postal savings bank branches on both sides of the Jiaojiang River no less than 5 times when handling online banking business, and did not receive the explanation and assistance he needed once. From the "Personal Electronic Banking Service Application Form" submitted by the defendant, it can also be seen that the plaintiff only applied for the online banking business of their own bank card. According to the internal regulations of the defendant's bank, once the bank card is signed, it will automatically "merge" with another bank card. The plaintiff cannot be aware of such unreasonable internal regulations, and other banks do not have such similar practices. As an emerging business of banks, online banking should provide detailed explanations on its functions, characteristics, and security risks to every depositor who handles this business. However, in this case, the Postal Savings Bank apparently failed to fulfill this obligation, which led to the plaintiff's ordinary opening of online banking into the so-called automatic "card merging", creating opportunities for the suspect to commit crimes.

(3) The duty of examination and verification was not fulfilled, and the work was hasty and failed to identify the obviously forged ID card used by the suspect, which violated the national regulations on "financial real name system".

According to the relevant regulations of the national "financial real name system", banks need to review and verify their identity documents, and compare the photos and other information on their identity cards online. Only when they are completely consistent can they handle business for depositors. At the same time, Article 67 of the Postal Savings Bank of China Savings Business System of the respondent bank also clearly stipulates that "when checking citizen identity information online, postal savings institutions check the authenticity of the names, citizen identity card numbers, photos and issuing authorities recorded in the individual resident identity cards provided by customers by logging into the People's Bank of China Information Transfer System and visiting the National Citizenship Identity Information System of the Ministry of Public Security." From the evidence provided by the second defendant, it can be easily compared that the photos on the forged ID card used by the suspect are obviously different from the photos on the plaintiff and the plaintiff's real ID card. If the bank checks and compares the photos in strict accordance with various regulations, the suspect has no chance to commit a crime at all. Therefore, the agent believes that the second defendant's failure to fulfill the statutory obligation of review and verification is the most fundamental cause of the dispute in this case, and they should bear the primary responsibility for this case.

(4) Failure to provide timely loss reporting services. According to Article 52, Paragraph 5 of the "Management Measures for Bank Card Business", "issuing banks shall provide cardholders with bank card loss reporting services, and shall establish a 24-hour loss reporting service hotline, providing both telephone and written loss reporting methods..." It is the legal obligation of banks to provide 24-hour telephone loss reporting services. But the plaintiff called the 95580 hotline 10 times from 19:31 to 20:35 on July 2 for assistance and requested to report the loss, but the defendant's bank did not provide this service to the plaintiff. The defendant argued that when the plaintiff called the hotline, all the funds in the card had been transferred and could no longer be remedied. The agent believes that providing 24-hour telephone loss reporting service is a legal obligation of the bank, and this obligation shall not be extinguished by the depositor calling too late or the account funds having been transferred. Moreover, from the bank notification SMS and call records received by the plaintiff, it can be seen that the plaintiff immediately called the hotline and made every effort to protect the security of their account. Unfortunately, in this case, the Postal Savings Bank did not fulfill its obligation to protect the security of depositors' funds.

3. The plaintiff has fulfilled the duty of care of ordinary people and made no mistake in using the bank card. Their request for payment from the bank should be supported.

After obtaining the bank card, the plaintiff has been cautious in using and keeping the bank card and password. They have never lent the bank card or leaked the bank card password to others, and have fulfilled the duty of care of ordinary people. The plaintiff even opened a bank's SMS reminder service to ensure the security of their account funds, indicating that they attach great importance to the security of bank card funds. At 7:29 pm on July 2nd, after receiving the first SMS reminder from the bank, the plaintiff immediately contacted the defendant's bank's service hotline for assistance and immediately reported to the police. These can fully demonstrate that whether in daily use or in handling emergencies, the plaintiff did not make any mistakes in using the bank card and has fully fulfilled the duty of care of ordinary people.

In the Letter on How to Allocate the Burden of Proof in the Dispute between Tianjin Post office and Jiao Changnian's Deposit Receipt, the Supreme People's Court clearly stated that the plaintiff's burden of proof in such cases was to prove the existence of the deposit contract relationship, the number of deposits, and the withdrawal card was not lost, and the plaintiff had completed the burden of proof. And all evidence submitted by the defendant is outside the time limit for providing evidence. Article 34 of the "Several Provisions of the Supreme People's Court on Civil Litigation Evidence" clearly stipulates that "the parties shall submit evidence materials to the people's court within the time limit for providing evidence. If the parties fail to submit evidence within the time limit, they shall be deemed to have waived their right to provide evidence. Therefore, the evidence submitted by them cannot be accepted by the court according to law, Moreover, the submission of these evidence by the defendant cannot prove any fault of the plaintiff in using the bank card, and the defendant should bear the consequences of not being able to provide evidence.

In summary, the defendant made many mistakes in the process of handling business. The plaintiff had already fulfilled the duty of care of ordinary people in using bank cards. The defendant should have paid the plaintiff 199981 yuan and related interest, and requested the people's court to support the plaintiff's lawsuit request.

Agent: Lawyer from Zhejiang Liqun Law Firm

Zhu Meicong, Ruan Taotao

October 14th, 2011