一起存单纠纷案例实录

——周显根律师

储蓄存款 不翼而飞

卢某系某电信公司员工，电信公司为方便员工工资计发，于1997年12月在中国建设银行台州市中山支行为卢某开设活期储蓄帐户并由卢某留存活期储蓄帐户密码，该活期存单可通存通兑。2000年2月4日，卢某持该活期存单到开户银行取款，发现于2000年1月21日被人在中国建设银行椒江支行下属一储蓄所取走5000元人民币；为此卢某多次与两行交涉，要求两行赔偿其损失，两行以自已业务操作符合规定没有过错为由，对卢某的要求未予支持。

存款被取 银行无错

卢某起诉认为：作为金融机构，对存款人的存款负有安全保护义务；由于两行工作人员在业务操作时，违反规定没有认真审核存折和取款凭条等重要凭证，导致卢某存款被人冒领，应依法承担过错赔偿责任。银行答辩认为：5000元存款是凭密码支取，其工作人员在办理取款业务时，是按储蓄管理条例进行操作，并不存在过错。

围绕焦点 激烈举证

卢某为证明银行过错责任，向法庭出示了中国建设银行储蓄柜员操作规程，规定储户取款时银行工作人员应审核取款凭条与存单名字相同一致，而本案5000元取款业务办理时，取款凭条中取款人填写的是“卢X飞”，而存单是“卢X非”，证明银行工作人员审核有误。周显根律师代理银行质证认为：从取款底单辩认可证实：当时取款人填写取款单时，字迹潦草，不能证明取款单中名字就是“卢X飞”；即使是“卢X飞”，也不能取走款项，因为取款人必须自已输入储户的密码才能显示存款人帐户余额，根据储户余额，银行查对取款所取款项是否超过了该余额，而该密码只有储户才知，银行工作人员根本无法知晓。

为证明银行在本案中无过错责任，周显根律师向法庭提交了如下证据：

1、卢某在不同时期的取款凭单，证明卢在不同时期取款时，存在不同的笔迹，表明除卢某自已本人知道存单密码外，还存在第三人知道该密码的事实；

2、计算机网络使用说明书、通存通兑处理系统管理办法、业务操作规则，证明储户自已加密的存单银行工作人员无法知晓，通存通兑存单一律凭密码支取，只要存款输入正确密码，即使不填单，也可取款。

卢某代理人质证认为：上述证据不能证明银行在办理本案5000元取款业务时按规定进行操作，且该规定是内部有关规定，对卢某不发生效力。针对对方代理律师意见，周显根律师作了如下质证反驳：

1、在本案中，卢某没有证据证明银行业务人员办理5000元储蓄取款业务时违规操作的证据事实；银行内部有关操作规程，是银行员工必须遵守的一项规则；界定银行业务人员有无违规操作，其操作规程就是最有力的证据；

2、鉴于银行对计算机密码实行“一人一码、专人专用、逐级管理、不得泄密”原则，银行工作人员无法知晓储户密码；储户如遗忘或更换密码，必须凭存单或身份证予以办理，因而对具有通存通兑业务的存单，均凭预留密码办理；因而存单和密码是进行通兑支取的必要条件，也是唯一条件，二者缺一不可。

银行无责 诉请驳回

一、二法院经审理后认为：储户在银行开设帐户后，双方之间形成了储蓄合同法律关系；存单作为双方书面合同的依据，银行作为债务人对该债权人负有支付义务；对持有该债权凭证的持有者，鉴于本案取款额只有5000元，银行无审查其是否真正债权人和存单持有的义务；由于本案存折加设了密码，根据银行有关操作规定，对具有通存通兑业务的存单，均凭预留密码办理；因而存单和密码是进行通兑支取的必要条件，也是唯一条件；鉴于银行对计算机密码实行“一人一码、专人专用、逐级管理、不得泄密”原则，银行工作人员无法知晓储户密码；储户如遗忘或更换密码，必须凭存单或身份证予以办理。卢某被取的5000元款项，应当认定银行工作人员不知该存单密码，故银行在办理5000元取款业务时，并不存过错；同时对卢某辩称名字填写有误，这也不是导致存款被取的原因之一，两者之间不存直接因果关系。卢某起诉要求银行承担赔偿责任，依据理由不足，依法不予支持，予以驳回。

本案启示

当前银行为方便储户取款，设置了自助银行；在自助银行设立来，发生了许多储户的卡上款项不明被取的现象，故公安部门为了防止一些不法分子利银行卡进行犯罪，要求金融部门对自助银行设置监控装置；银行在自助银行处，也提醒用户加强对自已卡号密码的保护，如发生不正常现象，请及时与有关部门联系，因而加强银行卡立法和保护储户的合法权益，是当前一个重要的课题。

A Case Record of a Deposit Certificate Dispute

——Lawyer Zhou Xiangen

Savings deposits have disappeared

Lu is an employee of a telecommunications company. In order to facilitate the calculation and payment of employee salaries, the telecommunications company opened a current savings account for Lu at the Zhongshan Branch of China Construction Bank in Taizhou City in December 1997, and Lu kept the password for the current savings account. The current savings certificate can be deposited and redeemed at all times. On February 4, 2000, Lu took the current deposit certificate to the bank where he opened the account for withdrawal, and found that on January 21, 2000, 5000 RMB had been withdrawn from a savings office under the Jiaojiang Branch of China Construction Bank; For this reason, Lu repeatedly negotiated with the two banks to demand compensation for their losses. The two banks did not support Lu's request on the grounds that their own business operations met the regulations and were not at fault.

The bank made no mistakes when the deposit was withdrawn

Lu filed a lawsuit claiming that as a financial institution, it has an obligation to safeguard the depositors' deposits; Due to the violation of regulations by the staff of the two banks in their business operations, they did not carefully review important vouchers such as passbooks and withdrawal receipts, resulting in Lu's deposit being falsely claimed, and they should bear the liability for fault compensation in accordance with the law. The bank's defense believes that the 5000 yuan deposit was withdrawn with a password, and its staff operated according to the savings management regulations during the withdrawal process, without any fault.

Intensive evidence gathering around the focal point

To prove the bank's fault liability, Lu presented the China Construction Bank Deposit Teller Operating Procedures to the court, which stipulated that when depositors withdraw funds, the bank staff should verify that the withdrawal receipt and the deposit receipt have the same name. In this case, when the 5000 yuan withdrawal business was processed, the withdrawal receipt was filled in with "Lu X Fei" and the deposit receipt was filled in with "Lu X Fei", proving that the bank staff had made an error in the verification. Lawyer Zhou Xiangen, acting on behalf of the bank, believes that the confirmation from the withdrawal receipt is that when the withdrawal recipient filled out the withdrawal form, the handwriting was illegible, which cannot prove that the name on the withdrawal form is "Lu X Fei"; Even for 'Lu X Fei', the funds cannot be withdrawn because the withdrawing party must enter the depositor's password to display the depositor's account balance. Based on the depositor's balance, the bank checks whether the withdrawn funds exceed that balance, and the password is only known to the depositor, which the bank staff cannot know at all.

To prove that the bank was not at fault in this case, Lawyer Zhou Xiangen submitted the following evidence to the court:

1. The withdrawal vouchers of Lu at different times prove that there were different handwriting when Lu withdrew at different times, indicating that in addition to Lu himself knowing the deposit receipt password, there was also a fact that a third party knew the password;

2. The computer network user manual, management measures for universal deposit and withdrawal processing system, and business operation rules prove that the depositor's encrypted deposit receipt cannot be known by the bank staff. All universal deposit and withdrawal receipts must be withdrawn with a password. As long as the correct password is entered for the deposit, withdrawal can be made even without filling out the form.

Lu's agent's cross examination found that the above evidence cannot prove that the bank operated according to regulations when handling the withdrawal business of 5000 yuan in this case, and this regulation is an internal relevant regulation and has no effect on Lu. In response to the opposing lawyer's opinion, Lawyer Zhou Xiangen made the following cross examination and rebuttal:

1. In this case, Lu did not have evidence to prove that the banking staff violated the rules when handling the 5000 yuan savings and withdrawal business; The internal operating procedures of the bank are a rule that bank employees must comply with; The most powerful evidence to determine whether banking personnel have engaged in illegal operations is their operating procedures;

2. Given that banks implement the principle of "one person, one code, dedicated personnel, hierarchical management, and no disclosure" for computer passwords, bank staff are unable to know the password of the depositor; If a depositor forgets or changes their password, they must present their deposit receipt or ID card for processing. Therefore, for deposits with universal deposit and withdrawal services, they must present their reserved password for processing; Therefore, certificates of deposit and passwords are necessary and the only conditions for cash withdrawal, and both are indispensable.

Bank's No Liability Claim Rejected

1、 After trial, the second court held that after the depositor opened an account in the bank, a legal relationship of a savings contract was formed between the two parties; The deposit receipt serves as the basis for the written contract between both parties, and the bank, as the debtor, has a payment obligation to the creditor; For the holder of the debt certificate, considering that the withdrawal amount in this case is only 5000 yuan, the bank has no obligation to review whether it is a true creditor and whether the deposit certificate is held; Due to the addition of a password to the passbook in this case, according to the relevant operational regulations of the bank, all certificates of deposit with universal deposit and withdrawal services are processed with the reserved password; Therefore, certificates of deposit and passwords are necessary and only conditions for cash withdrawal; Given that banks implement the principle of "one person, one code, dedicated personnel, hierarchical management, and no disclosure" for computer passwords, bank staff are unable to know the password of the depositor; If a depositor forgets or changes their password, they must present their deposit receipt or ID card to process the process. The 5000 yuan withdrawal from Lu should be deemed that the bank staff did not know the password of the deposit receipt, so the bank did not make any mistakes when handling the 5000 yuan withdrawal business; At the same time, Lu argued that the name was filled in incorrectly, which is not one of the reasons why the deposit was withdrawn, and there is no direct causal relationship between the two. Lu filed a lawsuit demanding that the bank bear compensation liability, but due to insufficient reasons, it was not supported by law and was rejected.

Enlightenment from this case

Currently, banks have set up self-service banks to facilitate withdrawals by depositors; Since the establishment of self-service banks, there have been many cases where the funds on the cards of depositors have been unclaimed. Therefore, in order to prevent some criminals from using bank cards to commit crimes, the public security department requires the financial department to set up monitoring devices for self-service banks; Banks at self-service banks also remind users to strengthen the protection of their own card numbers and passwords. If abnormal phenomena occur, please contact relevant departments in a timely manner. Therefore, strengthening bank card legislation and protecting the legitimate rights and interests of depositors is an important issue at present.