Research On Legal Issues Of Loss Allocation For Unauthorized Payment In China’s Internet Banking

Payment through internet banking has become one of the most important payment methods,security risk which caused by the openness of the Internet makes the unauthorized payment become the main reason for account holder’s loss.In practice,it’s difficult to find the unauthorized user or the unauthorized user is unable to take responsibilities,which caused the problem of how to allocate the unauthorized payment loss in the Internet banking payment system’s participants.In current judicial practice,the court allocate the loss depending on password clause and the security of Internet banking payment systems,which make the account holders bear the overburden responsibilities.Traditional theory of civil law,such as the ownership of currency 、agency by estoppel、quasi-possession claims, fails to solve the problem of who should bear the unauthorized payment loss in Internet banking,contract is becoming a strong basis that unauthorized payment loss should belongs to the account holders.In contrast, United States, European Union and Taiwan have enacted mandatory rules to allocation the loss which caused by the unauthorized payment.These rules of unauthorized payment loss allocation provide references of our country’s to make loss allocation rules.When we make the loss allocation rules of unauthorized payment in Internet banking,we should follow the guidance of loss allocation theory including loss spreading,loss reduction and loss imposition.For the loss of unauthorized payment,account holder bears the limited liability unless account holder’s gross negligence or presumption negligence cause the loss or enlarge the loss,but if the bank has fault, the account holder only bear the loss caused by his presumption negligence.Coordinating with account holder’s limited liability and fault liability can reasonable allocation unauthorized payment loss which caused by Internet banking payment system.