전자금융거래 사고와 금융기관의 책임

Recently, the National Assembly is considering the partial amendment of the Electronic Financial Transaction Act(EFTA). This movement starts from one problem that acknowledging damages when financial institutions have had notices of a loss or a theft from users is somewhat late, thus the time of acknowledging damages should be moved earlier. However, this amendment does not help at all to cure the fundamental problems of the EFTA. The EFTA have served as the Act for protecting financial institutions, not as the Act for protecting financial users, which have not been the case in foreign countries. Since the enactment of the EFTA, it provides an exception to the strict liability of a financial institution in case of a commercial user who stands a same level with the financial institution. This exception is applied broadly to an individual user with an intention or a gross negligence. As a result, the EFTA has formed a strong protection mechanism for financial institutions. Furthermore, the Enforcement Decree of the EFTA expands the scope of a gross negligence, and thus regarding an individual user who has exposed his own financial information to a defrauder and facilitated the reissuance and misuse of an accredited certificate as the person with a gross negligence who lacks a significant degree of care. Even though the EFTA provides a partial or full exemption for financial institutions in case of a gross negligence by an individual user, the Supreme Court has exempted the financial institutions absolutely when facing with a gross negligence. For this reason, there have been arguments in favor of deleting the gross negligence clause or arguments for interpreting the gross negligence as the same level of “being close to deliberate knowledge”. To make matters worse, the Supreme Court has made shocking decisions of exempting financial institutions absolutely in the series of transactions from wrongful reissuance of an accredited certificate to a fund transfer, internet borrowing and finally the redemption of a time deposit, when an individual user has exposed his own financial information with a gross negligence. The duty of care by financial institutions under the article 21 of the EFTA has been regarded as a declaratory clause, which has resulted in the protection system of financial institutions perfectly. Under this circumstance, this paper urges the National Assembly to submit the fundamental amendment of the EFTA which enables to ensure the strict liability of financial institutions by limiting the gross negligence of an individual user. A piecemeal amendment of the EFTA reflecting the misuse of a credit card is not sufficient for the protection of a financial consumer.