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Ensure Harm to the Client in Electronic BankingBY: Dr. Riad Mr. Hussein Abu Saeeda Abu Saeeda | Category: Education | Submitted: 2013-02-28 06:54:18
Article Summary: "There is no doubt that the evolution of the right banking emergence and spread of electronic banking is widely was accompanied by a number of legal problems arising from the deal for this type of banks. As these banks are based on mechanisms differ materially from those upon which the banks in the traditional sense ......"
There is no doubt that the evolution of the right banking emergence and spread of electronic banking is widely was accompanied by a number of legal problems arising from the deal for this type of banks. As these banks are based on mechanisms differ materially from those upon which the banks in the traditional sense, it was natural that shows the type of mismatch between the existing legal provisions and between banks as evolved .
Intended this kind of problems those related to the difficulty of determining responsibility for the damage that can occur between these banks and their customers.
What is striking to consider the question bank for nodal error is whether the damage to the client without the direct intervention of bank Kalkhall in software (design) or by third parties (Hachers) who break into the client's account in the bank by Global Information Network And manipulated in the customer's account or enter a virus hampering banking and seriously damage the customer .
He went jurisprudence and the judiciary in during most of the nineteenth century to the last clause contained in Article (1384), does not mean something special, but is a prelude to articles (1385 and 1386) which Taatkelman on responsibility for the animal and for construction And that it is explained in these articles. The result was that the damage that happens to humans by animals or construction, but by something else, be subject to the general rules in tort under which should prove wrong, injury and a causal relationship.
I took the wrong idea, that the evolution of tort House around, slowly weaken until almost disappear in some cases. Sometimes under the guise of error imposed presumably susceptible to prove a negative and the other under the guise of error imposed presumably does not accept to prove the contrary, and even completely disappeared and given way to carry liability theory (risque).
It seems that jurisprudence is the pioneer of this development. Hold it in his hand, and preceded him judiciary. Judiciary and marched behind Jurisprudence hesitant steps, and did not want to be walking half to an end, he stood at the wrong imposed, did not Ijaozh to liability is not based on fault originally, but on pure carry liability .
Influenced by the doctrine, first responded to this development, based on the Italian State school can say substantive criminal law theory and must rely on the merits of higher self, even in terms of the offender himself, punished not for what he deserves for his person, but given the requirements of the protection of society, was the first civil law to be fertile ground for this theory. Moreover, the work of Fiqh noted increased risk substantial increase would make it difficult for working proof of fault on the part of the employer so that he can return it.
If personal liability reform in the economic system is based on agriculture. In an economic system based on industry and progress information that wide strides forward, not only strict liability. Therefore, in view of this trend, the abandonment of liability based on fault and if imposed to abstract responsibility for any error.
The doctrine that the shift from substantive theory and stop to move, because of the position of both the legislation and the judiciary in France and returned to error theory. Remained constant on the theory in the broad sense of only a few scholars including gosran wedimog Sava tayea. French legislation remained, after that select a narrow theory of substance away from its introduction as a rule and only introduced some aspects of activity and consequent implications. Trend report liability without fault is said by scholars and Muslims. The Islamic jurisprudence does not take the idea of error in actual behavior.
Review examples and definitions of direct cause, the study finds, the lack of reference to the notion of responsibility for the error, but with all of the leading security do harm, there is no indication that Islamic law want of accountability security actor do but want to compel redress, because he did was to do the damage.
Human integrity and money enough in the eyes of Islamic law for direct accountability and polluter unconditionally, and this was confirmed by Professor OS: no requirement of a encroaching from the direct culprit of reparation, because Islamic jurisprudence does not already being considered prohibited for itself to ensure the actor but seen to do harm, if it is immediately if already done has resulted in damage was caused. The cause must be the illness with the provision that the sentence of an illness affecting the subject of reason leading to the Government and has no subject and no touching. In addition to causing illness in which meaning it can say: does not guarantee direct and create the idea of a causal link between the Act and the damage, but based on algwabr (embeds) a project to bring what interests, while legitimate checks to ward off evil .
The civil transactions Act cited in the article (282) the basis of liability for tort: ((all damage to third parties and if necessary is not highlighted to ensure damage)). This article decided that the general rule is that every action affects others harm it compensable and that this rule find AB with the Islamic Shariah and the expressed provisions of the judicial code, which stipulates in article 19 on the base ((ladarr and reciprocating))
This search finds that the civil transactions Act introduced the idea of access to reparations arising from tort and is the approach that is consistent with the provisions of the Islamic Shariah, which harm in two ways, causing.
The study finds that Jordan has transactions law into truth, as did the United Arab Emirates, and codified direct Muslim jurists also willed to make direct guarantor unconditionally and the text contained in article 257 out of controversy about doctrinal requirement or no requirement in direct infringement, and to make direct guarantor already either positive or negative and whether a scientist or ignorance, or forgetfulness or acting in Queen or King, small or special reasonable or crazy, just A tort which makes it a reason for the guarantee.
The Jordanian Court of Cassation decided on more than one resolution: the power of water to grab water irrigated lands of farmers and distributed to citizens as drinking water, it is as long as the resulting damage and water authority is obliged to compensate the affected lands. It is clear from this provision that the power of water causing libs plantings because they prevented the water from the resulting damage. Although the water authority has used a legitimate right and is to provide the citizens with drinking water but the Supreme Court ruled that the guarantee given to the Court of Cassation had promised to do, such as infringement. The same Court ruled that all damage to third parties and if necessary but distinctive, or causing, ensure the damage. The command that caused the damage is liable for compensation for the damage, whether done intentionally or unintentional .
According to this provision: that without discrimination, whether direct or guarantor causing needless to say that as long as the Court ruled that no discrimination is not considered a person, but I looked already, this provision suggests that the intent or deliberate error both in ensuring the offending, meaning that the guarantee be intentional infringement and infringement.
The Court also ruled Jordan, the security right if I use the right form of subsequent harm to others even if it used to with permission or license to use right of these provisions (That started the distinctive implementation and operation mechanisms so that scattering of dust affected trees plaintiffs, the damage arising from such an Act requires the security tokens) .
These decisions suggest that the Court of Cassation also considered right if because of a legit, if it infringes third party or property damage, it is also through the infringement of the right.
Through a review of the previous decisions of the Court seems to be focused on the objective criteria in the Act itself that the requirement infringed or not, we did not find any of the decisions discussed in the person or his mental condition when the offender actually harmful. In the sense that a court looking at already stipulate the infringement in not active .
The Court also decided not to require intentionality in offending act and said that the cause may be due to intentional or an error .
The Jordanian legislature's position was sound and the UAE when admitted to causing even though he did not deliberately or amendment, but merely resulted in harm. Without that, how can we ask that you refrain from handing over to the owner of the Ewe of the MEDEA he slaughters his mortality, causing Alice to do resulted in harm. The Bank also ensures no harm in using the electronic system for his commitment in the face of the customer on the illness, damage caused to the client as well, which guarantees the hoof injury that occurred to the person who was found in the closet, in the well or like him who shot by the wind into the well, where the occurred. This is reflected in the third condition provided by the legislator in article (257/2) and in article u.a.e. (283) and is (that is already conducive to damage).
As long as the Bank is committed to maintaining client funds and his secrets so that this obligation requires the meaning of illness and committed Bank warranty if this led to damage to the client as a result of the use of the electronic system. Furthermore, the application of this concept, causing customer damage compensation in the face of the Bank against the use of the electronic system, reduces the incidence of alien who could cause the Bank to evade responsibility as a system malfunction as a result of faulty drivers or a hacker on the Internet.
Purely out of perhaps the most important findings and recommendations
-Can help to recognize the lack of difference between civil liability imposed and error between physical responsibility for the charge is the first Ranger in the second official Gardien is user Beneficaire Sentinel may be non-user and vice versa.
-Bank liability affects clients from damage as a result of its banking account without the need to prove his mistake, given that the risk is the risk of the profession exercised by
-Latbraa the Bank in case of fault liability in meeting cheques of non-beneficiaries as a result of the use of false papers, but the risk of this meet, no matter how perfect forgery -- this is the risk of the profession by the Bank and is no risk
-It is necessary to enter the legislature ludwa legal framework which ensures adequate protection of parties to electronic banking contracts
-Search finds direct theory and causing a positive law (especially the Jordanian civil law and Emirati civil transactions law) at the very least to ensure the rights of the customer in the face - the Bank because it has not since its birth to the idea of the error or the accountability of the offender, but focused on mostly on reparation and maintenance rights protected, any damage occurring on the individual within the actor if he did do damage or the meaning of illness, and so can hold the Bank ensure that any damage to its clients as a result The use of electronic banking system. The injured shall not bear the burden of establishing the responsibility of the Bank, the latter cannot push responsibility on the grounds that the required diligence to prevent foreign cause because it does not have control; So for all of the above search legislator and recommends the introduction of direct waltsb theory from Islamic jurisprudence in form and substance, the study recommends that the jurisprudence and civil law commentators and generally positive adoption of damage the basis for the accountability of the offender is not wrong and work to redress the damage falls within the actor if he did do damage or the meaning of illness.
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