Firstly , the consumer using domestic debit card services can be an individual or an organization. According to the above analysis, it can be said that the relationship between the consumer using domestic debit card services and the commercial bank is a civil contract relationship. Therefore, to become a subject of this contract, individuals and organizations must satisfy the conditions of a civil contract. Article 117 of the 2015 Civil Code stipulates: "The subject has civil legal capacity and civil act capacity in accordance with the established civil transaction" . The civil legal capacity of an individual is the ability of an individual to have civil rights and civil obligations. [Article 16] and All individuals have the same civil legal capacity. The civil capacity of an individual is not limited, except in cases prescribed by law. Thus, the factor of civil legal capacity of an individual is natural and inherent. However, to participate in a contractual relationship, an individual must also have civil capacity. The civil capacity of an individual is regulated by the Civil Code according to different criteria depending on age and cognitive ability in Articles 19, 20, 21, 22, 23, 24 of the 2015 Civil Code. Based on that, legal documents in the banking sector have stipulated the subjects permitted to conduct transactions related to domestic debit card services. According to Article 16 of Circular 19/2016/TT-NHNN, cardholders:
“1. For primary cardholders who are individuals:
a) Persons aged 18 years or older with full civil act capacity as prescribed by law are allowed to use debit cards, credit cards, and prepaid cards;
b) Persons from 15 years old to under 18 years old who do not lose or have limited civil act capacity and have their own assets to ensure the performance of obligations in using the card are allowed to use non-overdraft debit cards and prepaid cards.”
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2. For primary cardholders who are organizations: Organizations that are established and operate legally under the provisions of Vietnamese law, including: legal entities and private enterprises, are allowed to use all types of cards. Cardholders who are organizations are authorized in writing for individuals to use the organization's cards or allow individuals to use supplementary cards according to the provisions of this Circular.
3. For supplementary cardholders:
The supplementary cardholder may use the card as specifically designated by the primary cardholder, but only within the following provisions:
a) Persons aged 18 years or older with full civil act capacity as prescribed by law are allowed to use debit cards, credit cards, and prepaid cards;
b) Persons from 15 years old to under 18 years old who do not lose or have limited civil act capacity and whose legal representative agrees in writing to use the card may use a debit card, credit card, or prepaid card;
c) Persons from 6 years old to under 15 years old who do not have lost or have limited civil act capacity and whose legal representative agrees in writing to use the card may use a non-overdraft debit card or prepaid card.”
Thus, according to these regulations, the primary cardholder will be bound by stricter conditions than the secondary cardholder because the primary cardholder is the one who transacts directly with the bank and those from 15 years old to under 18 years old, if fully meeting the conditions, can also become the subject using the domestic debit card service without overdraft. If you want to open a full domestic debit account with additional overdraft, you must be at least 18 years old and meet the conditions stated. In addition, due to the above analysis, the consumer is understood here to include both individuals and legal entities, so legal entities can also participate in card transactions through their representatives, the representative of the legal entity will participate in card transactions similar to the regulations for individuals.
Second , consumers are the weaker party in the relationship of issuing and using ATM cards at commercial banks due to limited information, professional knowledge, contract negotiation ability as well as self-protection ability. Consumers of financial services in general and domestic debit card services in particular generally have a low level of understanding of financial products. Over the past decade, all developing economies in the region and in the world have made great strides in establishing and developing their financial sectors. The opening of economies to multinational corporations to freely operate, the level of competition has increased between credit institutions such as banks, insurance,
mutual funds,... and the development of technology and infrastructure, have led to the emergence of increasingly complex financial products for the public. However, the public in transition and developing economies such as Vietnam does not have a long history of familiarity with complex, sophisticated financial products. For example, using ATM cards to withdraw money from automated teller machines, or using credit cards for payment are still unfamiliar to the majority of the population, especially in suburban, rural areas or even towns. The increase in financial literacy, therefore, is much slower than the growth rate of investment channels, or credit products offered on the market, leading to an increasing gap between the complexity of financial products and the ability of consumers to fully understand the products they are buying. Especially in low-income countries, with consumers coming to financial products for the first time, science and technology also have a significant impact on the protections that consumers need in financial transactions. Thus, consumers are in a weaker position, not proactive in information in card transaction relationships with the issuing organization, which is the commercial bank with high understanding and initiative in financial products.
Third , domestic debit card services bring many benefits to consumers, but there are also great risks. It is undeniable that with an ATM card, consumers can use it very quickly, neatly and conveniently to store money and make payments because ATM cards are increasingly accepted at many payment points. In addition, payment cards are also very easy to manage spending and safe with card locking or card cancellation when reported lost. However, the biggest weakness of ATM cards is also the thing that brings the greatest risk to consumers, which is information risk. Cards integrated with EMW chips have a very high level of security, but with high-tech crimes becoming increasingly complex and sophisticated as they are today, the risk of cardholder information being stolen is very high, for example, a series of cases of money loss in bank accounts for unknown reasons as widely reported by the press recently. In addition, the risk of fees and interest rates also significantly affects the interests of consumers. Most consumers when using domestic debit card services do not or pay little attention to the fee schedule and card usage regulations set forth by the issuing organization.
Partly because of unclear regulations or too small costs, it has created a subjective mentality among consumers. When fees or interest rates swell to a surprising level and require intervention, it can cause huge damage.
1.2. The need to protect the rights of consumers using domestic debit card services at commercial banks in Vietnam.
Currently, protecting consumer rights has been increasingly concerned, but the rights of consumers of financial services in general and the rights of consumers of domestic debit card services at commercial banks in particular have not received due attention. Looking at some recent cases such as the case of banks arbitrarily collecting annual fees, an ATM card "carrying" on its back 25 types of fees, losing money in accounts through card transactions, violating the security of personal information, handling complaints and disputes unreasonably..., the number of complaints related to the banking and financial sector is constantly increasing, it can be seen that it is urgent to have a mechanism to protect the rights of consumers using domestic debit card services in a more thorough and safe manner. It can be seen that consumer rights have been violated, but it is very difficult for consumers to protect themselves because the law on consumer protection in the banking sector of Vietnam is still too general and simple, and the enforcement of the law on consumer protection is still ineffective.
In addition, the level of development and civilization of a country is not only assessed by the growth rate of GDP and per capita income but also depends on the value of fairness and the ability to enforce the law. A civilized legal system must prioritize the protection of the weak. [20] Perhaps that is why the law on consumer rights is always an indispensable part of the commercial legal system of developed countries and has become an international legal issue. Therefore, building a stronger mechanism to protect the rights of consumers using domestic debit card services is also necessary to protect the rights of consumers in order to ensure and implement human rights and to comply with international practices and the United Nations' common framework on the protection of human rights in business. Moreover, the issue of human rights in Vietnam has become a goal of the country's development policies. The Party's viewpoints and the State's development policies all aim to achieve the ultimate goal of realizing human rights in practice.
civil, economic, political, social and cultural rights. Specifically, Article 14 of the 1992 Constitution, amended in 2013, stipulates: “In the Socialist Republic of Vietnam, human rights and citizens' rights in the political, civil, economic, cultural and social fields are recognized, respected, protected and guaranteed in accordance with the Constitution and laws”. Therefore, the implementation of legal provisions on protecting the rights of users of domestic debit card services contributes to the implementation of actual human rights. Because the rights of users of domestic debit card services at commercial banks such as the right to safety, the right to information, the right to choice, etc. are specific manifestations of human rights in the economic and social fields. A country is not considered to ensure human rights if, in transactions with banks, consumers are not provided with full information about financial services, are not guaranteed safety when opening and using cards, etc. [17]
1.3. Benefits of consumers using domestic debit card services at commercial banks in Vietnam.
According to the Vietnamese dictionary, rights are understood as benefits that are enjoyed and that others are not allowed to infringe upon. Thus, in the process of making card transactions at commercial banks, cardholders always have certain benefits that they are entitled to and that the bank is not allowed to infringe upon. From a theoretical perspective, cardholders are considered consumers in the banking and finance sector, so cardholders also have the basic rights of a consumer.
According to Resolution No. 39/248 dated April 9, 1985 of the United Nations General Assembly approving the "Guidelines for Consumer Protection", consumers have the following eight rights: The right to satisfaction of basic needs; the right to safety; the right to information; the right to choice; the right to representation; the right to complaints and compensation; the right to consumer education and the right to live in a clean environment. [15]
The above eight rights are the most basic rights of consumers. In each different field of consumption of goods and services, consumer rights may have differences. However, the difference is only which right is more profound. Financial field
Banking is a special business sector, users of domestic debit card services at commercial banks - special consumers have the following main rights:
(i) First , the right to safety : users of domestic debit card services must be guaranteed the safety of the money in their accounts as well as their lives, health, personal information security, rights, and other legitimate interests when participating in card transactions provided by the issuing or accepting organization.
(ii) Second, the right to be provided with information: cardholders have the right to have necessary data such as fee schedules, interest rates, contract changes... on that basis, to choose how to carry out their transactions.
(iii) Third, the right to choose: Consumers are free to choose products and issuing banks that suit their requirements and conditions.
(iv) Fourth, the right to complain and compensate for damages: the cardholder has the right to complain to the commercial bank that caused the damage to him/her and to receive effective compensation.
(v) Fifth, the right to consumer education: Consumers have the right to be educated about choosing and using domestic debit card services to suit their needs, and to be educated about their rights and obligations in the relationship between cardholders and issuing organizations...
(vi) Sixth, the right to representation: Consumers have the right to express their opinions to their representatives in the policy-making of the Government, to freely form appropriate consumer groups or organizations and to create conditions for such organizations to present their views in decision-making processes that affect them.
In Vietnamese law, considering the current legal system, we can see the inheritance and development of the above rights in legal documents protecting consumer rights, specifically the provisions on consumer rights in Article 8 of the Law on Consumer Protection 2010.
1. Be guaranteed safety of life, health, property, rights and other legitimate interests when participating in transactions and using goods and services provided by organizations and individuals trading in goods and services.
2. Be provided with accurate and complete information about organizations and individuals trading in goods and services; content of goods and service transactions; origin of goods; be provided with invoices, vouchers, documents related to transactions and other necessary information about goods and services that consumers have purchased and used.
3. Select goods, services, organizations and individuals trading in goods and services according to their needs and actual conditions; decide to participate or not participate in transactions and the contents of agreements when participating in transactions with organizations and individuals trading in goods and services.
4. Provide comments to organizations and individuals trading in goods and services on prices, quality of goods and services, service style, transaction methods and other contents related to transactions between consumers and organizations and individuals trading in goods and services.
5. Participate in developing and implementing policies and laws on protecting consumer rights.
6. Request compensation for damages when goods and services do not meet standards, technical regulations, quality, quantity, features, uses, prices or other contents that the organization or individual trading in goods and services has announced, listed, advertised or committed.
7. Complain, denounce, file a lawsuit or request a social organization to file a lawsuit to protect their rights according to the provisions of this Law and other relevant legal provisions.
8. Get advice, support, and guidance on knowledge about consuming goods and services.”
Although the above regulations are worded differently, they essentially represent six main rights of financial service users in general and users of domestic debit card services at commercial banks in particular.
1.4. Laws on protecting the rights of consumers using domestic debit card services at commercial banks in Vietnam.
1.4.1. Legal concept of protecting the rights of consumers using domestic debit card services at commercial banks in Vietnam.
It can be seen that the relationships between consumers and suppliers of goods and services are private relationships and the consumer himself is also a party in that contractual relationship. However, due to the characteristics of the difference between the position of the supplier and the consumer in this relationship, specifically the consumer is always in a weaker position, has less information, and is less professional, so it is necessary to have a certain intervention of the state in this relationship to ensure the rights and legitimate interests of the weaker party. Therefore, it is necessary to determine the scope of these types of private relationships that will be regulated by consumer protection laws, specifically which private relationships will be intervened in by consumer protection laws, and which relationships will be regulated by other private law norms.
Currently, in the world there are two main methods through which the State can protect the interests of consumers:
(i) Establish a legal system that prescribes legal liability for parties after a violation has occurred;
(ii) Or build a legal system to regulate and prevent violations in advance to minimize violations.[14]
In the first method, the parties are required to pay damages after the actual damage has occurred. In this method, the adjudicating bodies, in the vast majority of cases courts, including specialized courts, will decide the amount of damages, based on the nature and facts of the case. The parties will be required to pay damages for their wrongful acts, but only after the injured party has filed a lawsuit or a complaint with other competent authorities. The regulatory system related to consumer protection usually includes legal documents related to standards, metrology, quality, environment, or health. In many countries around the world, this regulatory system is supervised and enforced by competent authorities. For example, in India, standards issues are regulated by the Bureau of Indian Standards (a body that exists parallel to the Department of Consumer Affairs under the Ministry of Industry and Trade).