网银诉讼中客户权益特别保护机制研究

Research on the Special Protection Mechanism for Customers' Rights and Interests in Online Banking Litigation

基于网银诉讼案件中银行和客户之间民事法律关系的本质,考虑到网银交易的虚拟性、交易无纸化和瞬时性的特点,为平衡银行与客户之间的利益,应当建立网银客户权益特别保护机制,即银行对网银资金丢失的违约之诉承担主要赔偿责任;同时,在可认定客户存在使用和保管交易密码等过程中存在过失的情形下,适用《合同法》而非《侵权法》责任追究方式合理分摊责任,以促使客户履行谨慎注意义务。这样,可促进银行提高安全等级,促使更多客户放心使用网银服务;同时,又可将银行的责任控制在合理的可承受限度之内,由此,促进和保障网银这一新兴商业交易活动的健康、有序和顺利发展。建立网银客户权益特别保护机制及配套措施势在必行。

Based on the nature of the civil legal relations between banks and their customers,and taking into account the virtual,paperless and instantaneous features of online banking transactions,a special protection mechanism of online banking is necessary to be established for customers ＇rights and interests in order to make a balance on the interests between banks and their customers. This mechanism shall make it clear that the bank would take primary liability for the loss of online banking funds in the litigation for remedies because of the default,and then the liability shall be reasonably divided between the bank and the customer according to the principles of accountability in the Contract Law instead of the Tort Law in the case that the customer shall be deemed to have negligence in using and taking care over the transaction password,so as to encourage customers to fulfill a duty of care. The mechanism is set up to to facilitate the bank to upgrade the security and make it reliable to use the online banking services. Under such mechanism,the bank＇s responsibilities could be alsocontrolled within a reasonably affordable limit, so as to promote and enhance the prosperous development of the online banking services as emerging commercial activities. It is imperative to establish the special protection mechanism and the supporting measures shall be taken correspondingly for customers＇ rights and interests in online banking.