| On June 1st, 1993, president Jiang Zemin wrote for the Liquidation Center of the People's Bank that "To realize e-financing and serve the market economy of socialism." It reveals the hope for financial development in China. On 6th, March, 1998, at 5:30, the first transaction of net banking in mainland was successfully managed online and announced the start-up of the net banking business of mainland China. It is predicted that by the year of 2005, the account users of the net banking of China is to increase from 2.5million at present to 140million. The era of net banking is coming to China. However, it comes with the accompany of the risk of e-criminals. The openness of network provides chances for criminals with high-tech knowledge background. The illegal revelation of account code and illegal accounting sites are great threats to the safety and reliability of net banking. The thefts and crooks on accounting founds taken by the e-criminals have not only brought about scare in the customers but also become threats to the businesses of net banking. Besides, the dissensions between the account users and net banking caused by the criminal cases and the irretrievable financial loss are inevitable. Since there are no regulations or laws clearly defining how to share risk between the account users and the net banking, and the only referential contract, format contract, is drawn by the net banking, the allocation of risk between the account users and net banking is obviously unfair in terms of protecting the interest of customers. In addition, without written document, the evidences of transactions and safe warranty normally lie in the bank record, thus resulting in the passiveness of the account users. Therefore, how to effectively protect the interest of customers of net banking and fairly share the risk of stealing funds caused by e-criminals have become a new and practical problem at present. In this situation, this thesis adopts the means of normative analysis, empirical analysis, comparative analysis, and economic analysis to discuss the classification of the criminal cases of e-fund stealing and study the principle for the allocation of the risk among net banking, authentication offices, and customers with hope to provide constructive ideas for the solutions to the dissensions resulted from the e-fund stealing. Chapter One focuses on the analysis of the definitions of net banking and the rights and duties of the parties. It firstly introduces the definitions and differences of net banking and e-banks, the interior classification of net banking, the exterior form of net banking in economic activities, the role and characteristics of net banking, the relevant participants of net banking businesses, and their rights and duties. This thesis begins with the differences of net banking and e-banks; based on the organizational differences of net banking, this thesis proposes that net banking are "one kind of financial service instrument including online banks and suppositional banks and providing financial products and services by the information transmitted through internet." Through the services provided online, net banking are technological, open, and paperless, with multiple serving dimensions. The principal participants of net banking businesses are the net banking, authentication offices, and the customers. On the basis of the differences in services provided by the net banking and the authentication offices to the customers, they are different in their rights and duties. Chapter Two is the main body of the whole thesis. It discusses the allocation of risk of stealing funds between net banking and their customers. It firstly clarifies the reasons of the author on her disagreement on the two main principles at present of risk allocation---- the principle of beneficiary commitment and compulsory insurance system. Then, this thesis discusses the rationality of applying the principle of minimum risk to the risk allocation of stealing funds. Then this thesis illustrates the cases of stealing fu... |
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