전자지급거래의 법적 규율에 관한 비교법적 검토 - 지급서비스제공자와 이용자 간의 관계를 중심으로 -

Abstract

For the last three decades the technological development has made electronic fund transfers so widely employed in the payment service industry as to replace paper‐based payments with paper‐less ones, which has been materialized by the introduction and wide use of payment cards, giro transfers including standing orders and direct debits, and electronic money and which trend has eventually been extended to international payment transactions. Whereas they have certainly brought about enormous benefits to the society as well as individuals, electronic fund transfers have occasionally been exposed to unexpected risks. Not to mention liquidity, credit and systemic risk of the payment systems, which in turn affects individuals involved respectively, the parties to the payment transactions used to be`exposed to the risk of uncertainty surrounding legal relations between them, due to the fact that even though many persons concerned were involed even in a simple electronic fund transfer, for instance 3 or 4 parties in a card payment transaction, legal provisions governing such relations, in many countries, remained conventional civil law, mostly formulated or enacted hundreds years before electronic fund transfers appeared on the payment service market, meaning that such conventional law are hardly suitable enough to provide for appropriate solutions to disputes arising from new payment transactions. In this respect, the USA has treaded a new land for the first time as a pioneer in that in 1978, the Electronic Fund Transfer Act of 1978 as well as the Truth in Lending Act of 1968 , both contained in the Consumer Credit Protection Act, was enacted for the consumers protection purposes in the electronic fund ftransfers market, in addition to which UCC Article 4A of 1989 was drafted whereby it was meant to substitute conventional common law provisions with regard to credit transfers. The EU soon followed the USA model in this regard by the enactment of Consumer Credit Directive 87/102/EEC, Distance Contracts Directive 97/7/EC,Credit Transfer Directive 97/5/EC and Cross‐Border Euro Payment Regulation 2560/2001 so as to harmonise national laws of the Member States, even thogh partially. With the entry into force of the Payment Service Directive 2007/64/EC and Regulation 924/2009, the EU has eventually harmonized national laws of the Member States on the legal relations between payment service providers and payment service users in so many respects that the scope of the application of conventional civil law provisions to such relations comes to be as much narrowed as the EU can do it without harmonizing civil laws directly and indirectly related to contracts. Korea is to be classified as a special statute jurisdiction in terms of by which law legal relations between payment services providers and payment service users are governed, for the Electronic Financial Transaction Act was enacted in 2007 so as to regulate all kinds of electronic fund transfers, which is at the time of writing flanked by other special statutes for the consumer protection in the field of credit transaction and electronic commercial transaction and so on. Such special statutes,especially the Electronic Financial Transaction Act, are basically in line with the EFTA and UCC Article 4A in the USA and the Payment Service Directive and some Directives for consumer protection purposes. After it analyses main features of the said USA and EU laws for the purpose of comparing them with Korean special statutes, this paper suggests that there be additional legislative initiatives to strengthen consumer protection in electronic fund transfer transaction and to further narrow the application of conventional civil law provisions to such transactions, which is presumably essential for the payment service transactions to be made to appropriately function without damaging participants thereto inappropriately.