Applying the rule of empirical reasoning in payment authorization-Reflections on the second Payment Services Directive in the European Union
In instances where neither the issuing bank nor the cardholder can provide direct evidence regarding the authorization of a disputed payment,courts may resort to the rule of empirical reasoning to ascertain the truth.This method does not affect the distribution of the burden of proof between the parties,nor does it affect the standard of proof.The procedure for proving and disproving the payment authorization unfolds as follows:The cardholder needs only prove the payment was unauthorized by preponderance of evidence.Meanwhile,the issuing bank must prove the payment was authorized by clear and convincing evidence.The empirical reasoning requirement maintained in the clear and convincing standard can be accomplished by establishing"strong customer authentication standards"which is advocated by the second"Payment Services Directive"in the European Union.The cardholder is entitled to contest the bank's assertion of authorized payment.If such a contestation substantially weakens the judge's belief,the bank will be held accountable for the unauthorized transaction,unless it proves beyond a reasonable doubt that there was malicious collusion between the cardholder and a third party.
Empirical reasoningClear and convincingPresumption of factCustomer authentication
NETL
NSTL
万方数据
