Lao Peng give the class a Wuhan quadrangle 2 careful are hearing a difficult cases of civil disputes, the legal relationship is a bit complicated, when the trial ended, could become a classic case in such cases.

The case in the first instance judgment, the plaintiff appeals court, the defendant failed. The two defendants are not, appeal, the trial court in wuhan.

According to the old Peng oral, cases are recorded as follows:

The plaintiff Hu Yunfa in Wuhan Chinese Unicom Company to buy a mobile phone number (the first generation ID cards), and through the mobile phone number is tied the Wuhan Branch of China Merchants Bank "card" business, the business can conduct banking and financial services through the mobile phone, for the business, Hu Yun fat reserves the identity card number and password. With Hu Yunfa on the mobile phone tied up the bank card account for the amount of 290000 yuan. A female (fraud) pretending to be Hu Yunfa's daughter, Hu Yunfa with a fake ID (two generation) and a female identity card in China Unicom for a mobile phone card, the fraud by mobile phone number to go to re submit the Hu Yun sends the firm bank card in 220000 funds. Hu Yunfa found bank card money cheated after the turn, will China Unicom and China Merchants Bank as a joint defendant files a civil lawsuit: Unicom and China Merchants Bank share the loss of 220000 yuan and lawyer fees 8000. The court of first instance to support Hu Yunfa's indictment, the accused, appeal, the trial of the second instance court in wuhan.

Analysis of the problem:

1 of the "Hu Yun can apply to criminal, civil" principle, courts in adjudicating fraud after the trial of civil disputes?

Not suitable for "first the punishment queen people" principle, the situation and "Criminal Procedure Law" article78Provisions are not consistent.

"Criminal procedure"78Regulation: incidental civil action shall be heard together with the criminal case, only in order to prevent the excessive delay in the trial of criminal cases, can in the trial of criminal cases, by the same organization to continue the trial of civil litigation.

1985Years8Month19Day, notice of the Supreme People's court, the Supreme People's Procuratorate, the Ministry of public security "on the timely investigation found in cases of economic disputes in economic crime",1987Years3Month11Day, the Supreme People's court, the Supreme People's Procuratorate, the Ministry of public security "on economic crime must be promptly transferred to notice in the trial of economic dispute cases",1998Years4Month9Day, the Supreme People's Court on several issues related to "suspected economic crimes in the trial of cases of economic disputes in law" (release[1998]7Number of economic disputes) were found in the trial of suspected economic crimes must be "first the punishment queen people" also made provisions.

The so-called "first the punishment queen people", refers to the civil litigation activities, suspected criminal, should be in the investigation of suspected criminal facts ascertained, by the court of criminal trial, and then on the civil liability of the trial, or by the court in the trial of criminal offenses at the same time with the trial, civil liability, before this, the court should not alone be adjudicated in civil liability.

In this case, the plaintiff filed a lawsuit in civil compensation is Chinese Unicom and China Merchants Bank, rather than the fraud is relatively independent, civil action in criminal cases, non criminal incidental civil action, do not meet the "criminal procedure"78The provisions of the "punishment queen people first" principle. In addition, a lawsuit case of fraud crime is an established fact that have already occurred, does not conform to the provisions of judicial interpretation of above, also not for the "first criminal, civil" principle.

Not only that, according to the principle of "priority of private law", the court in the resource constraints, priority should be given to the trial of civil cases. "Criminal law" article60Regulation: legitimate debts incurred by the criminal element before the property confiscated property, need to repay, the request of the creditors, shall be repaid. This article in the content and the recognition of the essence of civil, criminal conflict of "civil priority" principle.

Determine whether to apply the "first criminal, civil" principle, should be based on the correlation in the case in the civil judgment, whether to criminal judgment result as the basis, or criminal judgment result will have a significant impact on the civil judgment, which both have close, in this case, obviously the two relatively independent do not apply, so "the first criminal, civil" principle.

2 this case belongs to tort, or contract dispute?

Breach of contract and tort concurrence relationship

On the one hand, there is the contract dispute, China Unicom and China Merchants Bank breach of contractual obligations, resulting in the loss of property. Providing the service contract between Hu Yunfa and Unicom Wuhan company and China Merchants Bank, one of the parties to make an offer to each other for services, their commitment to provide services for the parties, shall constitute a service contract between the two parties. Hu and Unicom are communicated as Hu provides the mobile communication and the additional services, Hu paid services; and between Hu and China Merchants Bank is the bank to provide financial services, to obtain bank financing through the provision of financial services.

On the other hand, infringement disputes, according to the "tort liability law" article6A: who is at fault for infringement of civil rights, he shall assume the tort liability. In this case, China Unicom and China Merchants Bank work due to negligence, causing the loss of property, tort liability.

3 account and password leak proof responsibility should be borne by whom? Whether Hu Yunfa is at fault?

The plaintiff breach, then Hu Yunfa did not bear the burden of proof.

Contract law "107Rule: if a party fails to perform the contract or its performance of the contractual obligations is not in conformity with the agreement, shall be liable to continue to perform its obligations, to take remedial measures or compensate for the losses and liability for breach of contract. According to the regulations, apply the principle of no fault liability for breach of contract, as long as the breaching party breach of statutory or contractual obligations, should bear the liability for breach of contract. There can be only proof Hu Yunfa damage results in the case.

But if the plaintiff Hu Yunfa filed a tort action, it shall bear the burden of proof. In the general tort liability, tort liability is one of the behavior existence fault as a precondition to bear civil liability, the implementation of the "who advocate in civil litigation, the burden of proof who proof".

Whether Hu Yunfa is at fault, should be discussed in different conditions. Because he reserved the identity card number and password in the business, left a hidden danger for others to steal, but if the reservation ID number and password is business must, do not think its existing fault. But Hu Ruguo is in other contexts, for intentional or negligent leakage account and password of its own, shall be deemed to its existing fault.

China Unicom mobile phone card for 4 violations of the criminal suspects using mobile phone will deposit transfer, whether a causal relationship with China Unicom and damage?

A causal relationship, Hu Yunfa bank card money was cheated, because of illegal operation of Unicom's for fraud for mobile phone card, the swindler the required mobile phone number to go Hu Yunfa China Merchants Bank card22Million of funds. Not illegal operations of Unicom's no loss of funds Hu Yunfa, so has a causal relationship between them.

Whether the law of cause and effect relationship between the China Merchants Bank for bank transfer has 5 existing business in the fault case and the results of the damage?

The existence of a causal relationship. The move due to the fault of Hu cloud bank card money was cheated, and their degree of fault shall bear corresponding responsibility. China Merchants Bank fault elements of tort Hu Yunfa property losses this causal relationship of fact, it is the law of cause and effect relationship.

6 as Unicom China Merchants Bank Company, constitute infringement, both sides bear full responsibility, responsibility, joint liability or liability?

Should not bear joint and several liability. Although in this case because it is China Unicom and China Merchants Bank common fault behavior cause Hu Yunfa resultant loss of property, but China Merchants Bank and communicated between the liability shall be joint and several liability is not true.

According to the "tort liability law" article8A: two or more persons jointly commit a tort, and causes damage to others, he shall bear joint and several liability. Article13A: the law shall bear joint and several liability, the infringee shall have the right to request part or all of the joint responsibility. Article14Article1Paragraph: joint responsibility to determine the amount of compensation is difficult to determine the size of their respective responsibility; responsibility size, shall bear the liability for compensation in average14Article2Payment: payment of joint and several liability people more than their own the amount of compensation, shall have the recourse against other liable.

The common violations of the provisions of the above terms, limited to the subjective meaning of common tort relationship, shall be based on the behavior between the contact for the necessary elements. In this case, China Merchants Bank and China Unicom is clearly not subjective torts in common, without contact with each other, so it does not apply to the above terms.

In this case, China Merchants Bank and China Unicom is the number of people without meaning respectively, tort, tort is the result of multiple causes the indirect binding, each behavior alone could not damaging consequences, belong to "a fruit" tort, tort several causes binding force without meaning contact.

According to the "tort liability law" article12A: more than two people commit a tort respectively that cause the same damage, liabilities can be determined, bear their respective responsibilities; to confirm the responsibility size, average bear the responsibility for compensation.

According to the provisions of this article, China Merchants Bank and China Unicom should according to their respective responsibility bear the responsibility, both sides could not confirm the responsibility size, the average bear the responsibility for compensation.