Home Banking

The object of this dissertation is focused on the study of the home banking service and how the allocation of losses due to computer fraud is processed in the scope of this service. When considering the questions raised by the allocation of losses associated with fraudulent operations, it is important to consider, mainly, the behaviour of the user of the home banking service. In our opinion, courts have been too demanding towards the user when judging his action in the use of this service. In this study, we have concluded that, when the user “falls” into a computer fraud scheme, he should not be liable for gross negligent behaviour, even if, due to the fraud, the user revealed all his access codes to a hacker on a page similar to that of his bank. In general, such facts will not be sufficient to qualify the user’s action as grossly negligent. Therefore, the user, under the terms of the Payment Services’ System, must bear the loss up to a maximum of €150, and the bank will face the remainder of the losses. However, if the user, victim of a fraudulent technique, ignored the safety warnings issued by the bank, one must consider, given the specific case, that he contributed to gross negligence in unauthorised payment transactions. Thus, the user must bear all the losses up to the moment when he notifies the bank about the unauthorised transactions. It is the bank’s responsibility to, given the specific case, adduce evidence of the client’s contribution to the identified losses.

O sigilo bancário e a fraude fiscal

Tax evasion and fraud threaten the economic and social objectives of modern tax systems, precluding the state funding for the satisfaction of collective needs and the fair distribution of wealth, being a violation of basic principles and values of our society. In tax law, to give tax administration the necessary powers to supervise and control the information provided by taxpayers and combat tax evasion and fraud, over the last years the grounds for a derogation of bank secrecy without judicial authorization have been extended, which raises some constitutional compatibility issues. Similarly, this tendency of making this legal regime more flexible and increasing automatic exchange of information has been followed by the European Union and the international community. Banking secrecy, as a professional secrecy, is an instrument to protect the right to privacy but also appears as an anti-abuse and repressive mechanism of evasive and fraudulent behaviors. Because of the conflict of interests will always be necessary to make a practical agreement between them, ensuring the legality and the due guarantees of the taxpayers but also an effective way to combat tax evasion and fraud. Bank secrecy cannot be one method to, behind the right to privacy, taxpayers practice illegal activities. But the practice of these irregular conducts also does not justify a total annihilation of the right to banking secrecy, uncovering all documents and bank information’s. Although considering the legislative changes, the administrative derogation of bank secrecy will always be what the tax administration does of it.