전자금융거래와 無過失責任主義

Strict Liability in a Government-proposed Electronic Financial Transactions Act

A bill to ensure the stability and reliability of electronic financial transactions was proposed to the National Assembly consecutively in 2003 and in 2005. The banking industry strongly opposed to the establishment of a draft Electronic Financial Transactions Act because financial institutions would be responsible for any forgery and hacking incident of electronic financial transactions regardless of their fault or negligence. On the other hand, consumers associations are also not fully satisfied with the bill because they see that the bill imposes insufficient responsibility of financial institutions. The government-proposed bill imposes liability on financial institutions and other e-payment service providers in the event of a theft or forgery of such access media as PIN and password, on-line hacking, and other electronic incidents regardless of the institutions fault or negligence. The goal of the bill is to provide a reasonable allocation of responsibility among the participants in electronic financial transactions. It goes one step further than the liability status imposed by the current general terms for electronic financial transactions. So financial institutions are not responsible at all for customers verifiable intent or gross negligence. The bill is also about to oblige financial institutions to take safety measures such as casualty insurance, mutual aid programs or reserve accounts. Opponents to the government-initiated bill argue that the bill will encourage electronic transactions-related crimes, and create additional incentives for customers to be careless. They fear that frequent e-banking incidents could undermine the financial stability of banks by forcing damages and additional security measures to be borne by banks, and the increase of e-banking fees would ultimately thwart the e-banking transactions. Opponents also point out that the bill is contrary to the conventional legal system based on negligence liability. Nevertheless, there appears to be a significant trend of strict liability in such areas as consumer protection and environmentalism in Korea. For example, the Products Liability Act, the Soil Environment Preservation Act and Nuclear Energy Damages Compensation Act have similar strict liability clauses. Therefore, strict or no fault liability envisaged in the e-banking bill should be established for the following reasons if the public reaches national consensus in that direction: - Electronic financial transactions are inherently profitable to banks and e-payment service providers; - It is reasonable for the party who have control over incidents to be responsible for them when nobody proves to be negligent; - It is quite natural for the party introducing sophisticated technologies to pay attention to the related incidents; - It is reasonable for the party with deep pockets to invest in information security technologies with diverse spill-over effects which will be applicable to financial transactions; and - Financial institutions which have a great number of customers are required to build a bridgehead in solving the problems caused by technological developments. Also, financial institutions have ample and reasonable opportunities to mitigate the strict liability imposed upon them, e.g., via generally applicable indemnification clauses, acknowledgment of state-of-the-art security technology excuses and the segregation of B2B and B2C transactions. Thus, financial institutions will usually take the comparative liability to corporate clients, while they assume strict liability toward individual customers. Ultimately, it would be inevitable that banks are forced to spend greater sums on fortifying their systems to prevent hackers intrusions into their on-line banking services, repairing flawed technologies, purchasing new equipment, hiring on-line security consulting firms, and finally entering into casualty insurance contracts or mutual aid programs.