Controversy focus and verdict

Controversy focus and verdict, a case should be put on file, exchanged evidence, debated in court, and finally stated, and finally the focus of the dispute will be summarized according to some operations of the trial. The focus of the dispute and the verdict are shared below. Controversy Focus and Judgment Result 1

It is very important to summarize the dispute focus of the case in court

the Supreme People's Court's "Several Provisions on the Reform of Civil Economic Trial Mode" points out: "The presiding judge or the sole judge summarizes the dispute focus of this case or the focus of court investigation, and solicits the opinions of the parties"; Judges should guide the parties to debate around the focus of the dispute.

In the actual trial process, it takes less time to summarize the focus of controversy, but its role cannot be ignored. The induction of the focus of controversy plays an important role in the concentration of arguments between the two parties, the sharing of burden of proof, and even the success of the case. Therefore, lawyers acting as agents in the trial should try their best to sum up the focus of disputes in favor of their own cross-examination when explaining their opinions to the court.

In the first trial, the securities company lost the case

The plaintiff believed that the signature on the cash withdrawal voucher was not Wang's own handwriting, so the money was impersonated. The business department of a securities company is negligent in management, resulting in damage to the funds entrusted to it by the plaintiff, and it shall bear corresponding legal responsibilities. Request the court to order the business department to return 86, yuan in cash and pay interest.

the attorney of the defendant in the first instance pointed out that according to the plaintiff, he knew that the deposit in his account was withdrawn by others in May of 2xxX, but he didn't negotiate with the defendant until November, and before that, the plaintiff had opened a designated trading account elsewhere, so it can be inferred that 86, yuan was withdrawn by the plaintiff himself. Request the court to dismiss the plaintiff's lawsuit.

according to the claim of the defendant's agent, the focus of the dispute in the first instance was summarized as: whether it was the plaintiff himself who withdrew 86, yuan in cash from the plaintiff's capital account on August 4th, 19xx.

in view of this focus, the defendant must prove that the deposit was really taken by the plaintiff himself. Therefore, the court asked the defendant to submit the video data of the deposit and withdrawal at the defendant's counter that day, the reservation record of withdrawing large amounts of cash and the deposit withdrawal voucher filled out by the drawer when withdrawing money. As the withdrawal took place in August of 19xx, and the plaintiff filed a lawsuit in December of 2xx, with a time interval of two years, the defendant was unable to collect the evidence required by the above court due to conditions.

after trial, the court of first instance held that the defendant has the obligation to keep the transaction deposit entrusted by the plaintiff safely, that is, when handling the deposit withdrawal business, the defendant should strictly examine whether the plaintiff himself or not withdraws money in the name of the plaintiff, and establish a scientific and reasonable audit system to ensure the security of the transaction.

on the premise of confirming that the withdrawal slip on August 4th was not signed by the plaintiff, the defendant has neither provided the record of the withdrawal made by the plaintiff in advance, nor provided the video materials when withdrawing money and the deposit withdrawal voucher filled by the plaintiff himself. Just because the transaction password at the time of withdrawing money is correct, it is concluded that the conclusion that the disputed money was collected by the plaintiff himself is insufficient. Therefore, the defendant finally lost the case and paid the plaintiff RMB 86, and interest.

The sales department of the securities company was really aggrieved by such a verdict, so they re-hired a lawyer and appealed to the court of second instance.

In the second trial, both parties are half-responsible

In the second trial stage, the appellant's attorney adjusted the angle of proof and cross-examination, and there are two key points:

First, the password system used by the appellant has been tested to meet the security standards, and it is impossible for the brokerage firm to obtain the password through the operating system. Therefore, the appellee is the only right holder to compile the password, and he has the responsibility to prove that the password has not been leaked, that is, he has done his best to keep the password information.

2. The appellee did not reserve his signature when handling the entrustment agreement, so he should not ask the appellant to bear the responsibility of receiving the security deposit by others because the signature on the receipt of funds is not his own handwriting.

The appellee always insisted that the signature was not his own handwriting, and thought that the original judgment should be upheld.

The focus of the dispute summarized by the court of second instance is whether the appellant was at fault because the money in the appellee's fund account was falsely claimed by others.

in view of this controversial focus, if the appellant wants to prove that he is basically innocent, he must try to prove that the signature, ID card and password, which are the key basis for customers to withdraw funds, have priority.

Before drawing a conclusion, it is necessary for us to know the general procedures for customers to withdraw the deposit:

1. The deposit teller checks the customer's ID card, securities account card and withdrawal voucher filled out by the customer.

2. Find out whether the deposit originally deposited by the customer is cash, and whether the amount withdrawn exceeds the amount deposited by the customer.

3. find out whether it is handled by me (if it is an agent, it should be found out whether there is any authorization to withdraw money).

4. Check the desirable amount of customer deposit according to the system operation procedures.

5. prompt the customer to enter the fund password through the keypad. if the password is correct, fill in the withdrawal amount on the computer operating system, print the withdrawal form, and affix the special seal for deposit and withdrawal of the business department and the teller's private seal.

6. Submit the withdrawal slip to the customer for confirmation with a private seal or signature;

7. Submit the deposit withdrawal slip to the bank teller for cash withdrawal or deposit transfer. After the bank teller completes the formalities, the deposit withdrawal slip shall be stamped with the special seal for savings and the personal seal of the counter handler, and then kept in the bank copy, and the other two copies shall be returned to the deposit withdrawal teller.

8. The deposit teller checks whether the bank teller's seal is clear and complete, and then returns the customer's ID card, securities account card and customer's copy of the deposit withdrawal form by roll-call response.

from the above procedures, the customer must meet three conditions to withdraw the deposit: first, the amount of cash in the account is greater than the amount of cash withdrawn; Second, submit the ID card, securities account card and withdrawal voucher to the deposit teller; Third, enter the correct fund password.

the first condition is a prerequisite for receiving the deposit, and it is also a constraint on whether the customer can withdraw cash; The second and third conditions are the necessary guarantee for the success of the withdrawal operation. The reason why securities companies have to set up this heavy guarantee is precisely because of the consideration of ensuring the safety of customers' funds. Let's analyze these precautions one by one:

The use period of Chinese citizen's ID card varies with the age of the applicant, and the older the applicant is, the longer the validity period of the ID card will be. This means that with the passage of time, the gap between the photos on the ID card and the real people will become wider and wider, which will increase the difficulty of identification.

When checking with the person in the photo on the ID card, it can only be roughly similar, and it is almost impossible to ensure that the judgment made by the naked eye is 1% accurate. This is why, at ordinary times, I seldom get a ticket back when I go to work with the ID card of someone who looks similar to me.

a securities account card is equivalent to a bank passbook, and it is a written certificate for customers to receive a deposit. It is kept by the customer himself, and it can be reported lost. The independent security protection function of securities account card is actually very poor, and it can only be effective if it is combined with the other two.

Identity cards and securities account cards exist in tangible forms, which are easy to be lost or damaged, so the protection built with them is very fragile. In the past, people used reserved seals and signatures to strengthen protection. Although it is difficult to forge seals or signatures, it still happens from time to time. After all, counter operators are not experts. In order to better protect the safety of customers' funds and reduce unnecessary losses of financial institutions,

At present, password protection is the first choice for financial institutions, and then seals and signatures are reserved for them according to customers' requirements. The password is set by the customer when opening an account and managed by the system, which separates others except the account holder in two different areas: operation and information supervision.

Of course, passwords will be challenged by hackers, but the probability of this happening is extremely low, and it is even more impossible if you want to hack into other people's accounts through computers without leaving any trace. Therefore, the password is the most effective protection as long as the customer who sets the password keeps the password information properly.

Let's get back to the topic and look at the three factors involved in this case: signature, ID card and password.

The reason for Wang's lawsuit is that the signature on the cash flow slip is not his own handwriting. The sales department of the securities company has not raised any objection to this, but as the appellant's agent pointed out, Wang did not ask for the signature to be reserved, so how can the counter operator recognize at a glance that the signature is made by someone else? In the face of this, the appellee pointed out that the teller had to check his ID card, and the combination of the two should reveal that it was not Wang himself who made the withdrawal.

But as we mentioned earlier, the security risks of the ID card are too great. As long as the appearance of the applicant changes, its effectiveness may be greatly reduced. In this case, Wang was in his forties at the time of the lawsuit, but his identity card was handled more than ten years ago. In the photo, his hairstyle was split, but in reality, he had a flat head, and the rest of his appearance changed significantly.

Therefore, it is impossible for tellers to draw a conclusion that whether the holder is the owner of the certificate is 1% accurate, and these are objective reasons and cannot be improved by strengthening technology. Therefore, it is obviously too thin for Wang to support his claim only by signature.

The lawyers of the appellant are clinging to the password. Although this is the only weight in their hands, its effectiveness should take precedence over the signature and ID card. Because the password is unique, and the password is only known by Wang who set it, the password is the safest.

During the trial, the appellant's attorney asked Wang whether he had lost his ID card and fund account card, and whether he had disclosed the password to others, in order to make the court realize the key role of the password in this case. Wang's answers are all negative.

From the testimony, it seems that Wang does not have to bear any responsibility, but the uniqueness of the password holder determines that the risk of keeping the password has been transferred to Wang from the date of setting. Therefore, he must keep the transaction password confidential and bear all the responsibilities after it is leaked. The key to the success of the cash in the fund account is that the impersonator entered the correct password. Therefore, no matter whether Wang actually disclosed the password to others or not, he has an unshirkable responsibility for this loss.

The judgment of the second instance found that the appellant's trading system could not enter the withdrawal procedure without the fund card issued by the appellant; If the cashier doesn't enter the accurate trading password of the appellee, the withdrawal procedure will be terminated by the trading system, and the appellant can't continue to print the Cash Flow Receipt, so the situation that the appellee's stock deposit is impersonated by others won't happen.

therefore, it can't be ruled out that the appellee's improper custody of his fund card and confidentiality measures for his transaction password caused the appellee's stock funds to be impersonated by others, for which the appellee was at fault.

the appellant has the obligation to ensure the safety of the funds in the appellee's fund account. Because the appellant's counter staff should check the withdrawal amount according to the computer records, print out the Cash Flow Receipt and hand in the cashier's signature on the spot, but in fact the signature on it is not the appellee's own signature, so it should be considered that the appellant has made a mistake in checking the appellee's identity, and that the appellee's funds have been impersonated and there are also faults. In the end, the final judgment was made that both parties should bear half the responsibility.

Thinking after the case

The verdict of the second instance in this case is still regrettable, because it may bring some negative effects, but what really deserves our attention in this case is the influence of different dispute focuses in the two-level trial on the verdict.

In the first trial, the defendant's agent "hit the nail on the head" pointed out that it was the plaintiff himself who made the withdrawal that day, and the court also summarized the focus of the dispute. Although there are various signs in fact that the plaintiff is suspected, the defendant pointed out bluntly that the final result of this point only increased his burden of proof, and then put himself in a position where he could not prove it. This defeat made the extremely powerful evidence in the defendant's hands-the priority effect of password-not work at all, and directly led to the defendant's failure in the first instance.

the appellant's agent in the second trial, after realizing his possible defects in the proof, avoided the entanglement of the factual evidence about whether the withdrawal was carried out by Wang himself, but further emphasized the correlation between the uniqueness of the password holder and the fraudulent use of the deposit.

This prompted the court of second instance to focus the dispute on whether the appellant was at fault for the occurrence of impersonation. In view of this, the agent of the second instance asked the appellee a series of questions about whether the appellee lost his identity card, fund account card or leaked password information. In this regard, the appellee's answer will be difficult, and if the answer is lost or leaked, he will bear all the responsibilities; If the answer is not lost or leaked, I will bear the burden of proof to prove that the appellant knows his password. The appellee is only in a dilemma.

The reason why the verdict of the second instance will change is because the agent of the second instance used his own litigation skills, which made the focus of the dispute concluded by the court beneficial to his own evidence and cross-examination. In a series of cross-examination around the focus, the appellant's attorney embarrassed the appellee, made the collegial panel of the court of second instance doubt the appellee's integrity, and easily avoided the embarrassment of not giving evidence.

don't worry too much about the final outcome of this case, after all, it is influenced by many factors. What's important is that this case has revealed to us that the focus of controversy is very important in litigation. Therefore, both parties and agents should pay enough attention to this, and make careful choices in the proceedings to fully clarify their views, so as to urge the court to sum up the focus of disputes that are beneficial to them. Controversy focus and judgment result 2

How can the judgment document accurately summarize the controversy focus?

the judgment document is the final product of the whole judicial work assembly line, the concentrated expression of the people's court exercising judicial power according to law, and the most refined and complete summary of the whole litigation activity. The judgment document should not only reflect the justice of the people's court's judgment in conclusion, but also make the parties know and understand why the judgment is fair by correctly summarizing the focus of the dispute and thorough reasoning analysis. Therefore, summarizing the focus of controversy is the core and key of the judgment document, and it is the most important part of the judgment document.

Only when the focus of the dispute is accurate and the reasoning is thorough can we ensure the accuracy of the judgment, ensure the correct implementation of the law, and let the people feel fair and just in every judicial case.

How to summarize the focus of disputes between the parties should pay attention to the following aspects:

First, improve the quality of pre-trial marking. The judge's views on the disputed focus of the parties are gradually formed, including the pre-trial marking, pre-trial meeting, court investigation and document writing. Therefore, the judge should carefully examine the litigation materials in the pre-trial preparation stage.