Research On The Legal Safeguard Mechanisms For The Safety Of Internet Banking

Accompanied by the springing up and rapid development of internet banking, various security problems are increasingly exposing and distinctive, just having become the major bottleneck restricing internet banking from further pushing on. Apparently, the traditional legal systems in the international society have already been incapable to effectively respond and solve these hidden troubles related to internet banking existing in the reality. Thus, it is of great practical significance to analyze the deep connotations and essence of the security problems of internet banking, examine their peculiar manifestations and different causes, explore how to build up and improve the stronger legal safeguard mechanisms in accordance with the particularity of internet banking. In view of that, on the basis of theories of financial jurisprudence and international financial jurisprudence, the author comprehensively applies the analytical methods of positivism, normativism and comparison to make systematic research on the issues of the legal safeguards for the safety of internet banking.The dissertation consists of five chapters besides the introduction portion.Chapter one is the summary for the safety problems of internet banking. In that chapter, the author first defines and concludes the basic concepts of internet banking and the main characteristics thereof, then she summarizes the three-layer implications for "the safety of internet banking " in theory according to the various security problems existing in the internet banking practice, that is, the security of computer systems and infonnation, the security of transaction, and the safety and soundness of internet banking institutions and the whole banking systems as well, and thereafter she makes an initial analysis on the sources, essences, and resolutions about the safety problems of internet banking. On that basis, the author also briefly introduces the international legislative practices with regard to the assurance of safety of internet banking, and puts forwards the general conception about constituting the legal safeguard mechanisms, and points out that the mechanisms should be composed by three parts, namely the safeguard mechanisms for system and information security, for transaction security, and for the safety and soundness of internet banking institutions and the industry, etc. In Chapter one, the author not only raises problems, but also indicates the general resolutions for the problems, thus the chapter in fact establishes the general principles and lays the foundation for the deeper analysis in the later chapters.It is based on the initial analysis made in Chapter one that the following threechapters ranging from Chapter two to Chapter four make the deeper exploration and positivist research on the legal safeguard mechanisms for the safety of internet banking in the international society, respectively from the angles of the safeguards for system and information security, the safeguards for transaction security, and the safeguards for the safety and soundness of internet banking institutions and the whole banking industry as well. The three chapters constitute the main parts of the whole dissertation, by way of analyzing and demonstrating the problems.Among them, Chapter two is mainly about the research on the legal safeguard mechanisms for the security of internet banking system and information, hi the perspective of the first layer implications of the safety of internet banking, the author in this chapter analyzes the major factors threatening the system and information security, demonstrates the necessity of legal interference, and then in great detail examines and discusses the main policies and legal mechanisms for safeguarding the security of system and information established in the international society at present. The aforementioned mechanisms mainly involve the following four respects: the first one is the international and national policies and legal safeguard mechanisms which aim at ensuring the entire security of the computer systems and networks; the second one is the international and national laws which try to enable some important security technologies, such as cryptography and electronic signatures, to fully perform their functions; the third one is the industry self-regulating mechanisms which attempt to urge the internet banking systems and the related information come up to the specific security level required by the industry; and the fourth one is the concrete banking supervision laws and systems which require the special security risks of internet banking systems and information to be prevented and controlled effectively.Chapter three specifically addresses the legal safeguard mechanisms for transaction security of internet banking. In this chapter, the author first analyzes the main parties of internet banking and the relationships between them, reflecting the particularity and complexity of the internet banking transaction. After that, surrounding the second layer implication of the safety of internet banking, the author concretely discusses the major risky factors which perhaps affect the security of transaction and explains the necessity of transforming the traditional transactional legal systems. On that basis, the author further makes a more detailed examination on the legal mechanisms for transaction security. At first, by virtue that most of these legal systems focus on solving the mian security problems resulted from electronization and fictionization of the transaction forms and procedures in the current transactional internet banking activities, the author in this part makes the detailed elaboration and analysis of some relevant important legal rules, which notonly involve those basic laws generally applicable to all the electronic commercial activities including internet banking, for instance, the legal systems of the data message, of electronic contracts entered into in the internet space, and of electronic signatures and certification as well, but also cover those special legal systems for transaction specifically applicable to certain particular internet banking transactions such as electronic funds transfer. Secondly, considering that some other important legal systems are created or corrected for the purpose of addressing the increasingly serious security problems threatening the rights and benefits of customers, the author therefore expounds the special legal safeguard mechanisms for the customers' rights and benefits. Finally, the author also explains the fundamental and supplementary roles played by the contractual mechanisms and the self-regulating mechanisms in safeguarding the transaction security of internet banking.Chapter four concerns the study on the legal safeguard mechanisms for the safety and soundness of internet banking institutions and the whole industry. Considering that the legal systems on banking supervision lie at the core of the entire mechanisms, the author in fact makes the concentrated exploration on the legal mechanisms for the supervision of internet banking in that chapter. First of all, the author profoundly analyzes various risks related to internet banking, and sets forth the challenges brought by them to the traditional banking supervision laws, and further points out that it is necessary and imminent to transform the traditional laws. Thereafter, the author carefully explores the basic standpoints and actual practices of the international society in the respect of transforming and improving the internet banking supervision legal systems, including the three major parts such as the market access supervision, the ongoing prudential supervision and the termination supervision, and the first two parts are considered as the focal points of the exploration.While examining the research products obtained by the international organizations in the field of internet banking supervision, the author treats the relevant supervisory principles issued by the Basle Committee as the most important objects of study although she examines at the meantime some documents made by other international organizations, for the Basle Committee is so authoritative in the international banking supervision field. When discussing the internet banking supervision laws in different legal jurisdictions, on one hand, the author considers the legal practices in the United States as the focal points for they are so special, complicated and advanced, on the other hand, the author also chooses some other countries including the developed countries, emerging market economic countries and developing countries as the objects of study so as to show such an important fact that almost all the countries of different economic conditions emphasize thestrategies of developing internet banking and the implementation of the effective supervision and safeguard measures.During the exploration of the legal safeguard mechanisms for the safety of internet banking, the author examines more about the internet banking supervision legal systems for the reasons that they are more capable of reflecting the characteristics of banking. In comparison, the legal safeguard mechanisms for the security of system and information as well as those for the security of transaction are considered less important, and the reason is that these two parts have many common and similar places with the legal safeguard mechanisms for the security of general electronic commerce.In Chapter five, the author collectively discusses the problems of constructing and improving the Chinese legal safeguard mechanisms for safety of internet banking. The logic utilized by the author here is to consider building the legal safeguard mechanism as the basic legal approaches to resolving the safety issues of internet banking in China, and then to apply those helpful experiences obtained from the international society to the specific progress of constitution and improvement of the Chinese legal safeguard mechanisms. As the last and concluding part of the dissertation, this chapter finally focuses Chinese concrete practices. On the basis of explaining the special strategic meanings of developing internet banking in China and the necessity of developing internet banking, as well as analyzing the current conditions about development of Chinese internet banking and about Chinese relevant legislation, the author combines the international experiences with our concrete situation, then puts forward some detailed reflections and suggestions on improving current legal safeguard mechanisms for the safety of internet banking, especially on improving current supervision laws of internet banking.