Η ευθύνη της τράπεζας ως παρέχουσας τραπεζικές υπηρεσίες κατά το άρθρο 8 Ν. 2251/1994
Δούβλης, Βασίλης Α.
Τραπεζικό δίκαιο -- Ελλάδα Καταναλωτές -- Προστασία -- Δίκαιο και νομοθεσία -- Ελλάδα Ευθύνη (Δίκαιο) -- Ελλάδα Banking law -- Greece Consumer protection -- Law and legislation -- Greece Liability (Law) -- Greece
Πάντειο Πανεπιστήμιο Κοινωνικών και Πολιτικών Επιστημών
In the contemporary age, the need of the consumer to be protected when dealingwith the credit institutions such as the banks is more compulsory than ever. The creditinstitutions nowadays, in the scope of massive, standardized transactions dealing dailywith their customers, behave continuously more as commercial enterprises. In said retailbanking, such as services provided to individuals or non professionals, the banks followaggressive manner of sale, adopt sometimes uniform practices, so that the customer doesnot have alternative solutions being inexperienced in the credit transactions and not wellinformed on the engagements that he undertakes, finding himself trapped in the practicesthat are imposed to him by the more powerful opposite parties, the banks, under thepretext of - unilateral actually –contractual freedom.Under the effect of ECC Legislation but also in the aspect of global economy andfree market, the social demand for protection of the consumer, who facing the elements ofthe market does not have neither the ability nor the knowledge to stand as equal againstthe other party, i.e. the powerful supplier, namely the banks, was very early put forward.Under these circumstances, ECC egislation forces Greece to reform its law and for thefirst time in 1991, by the effect of Law 1961/1991, to develop more adequate legalinstruments for consumer protection. However, due to the evolution of social policy andthe need to harmonize our regulation according to the EU directives, the Law 1961/1991was abolished and surrogated by Law 2251/1994, article 8 (as it was later amended byarticle 10 of Law 3587/2007 and is in effect up to date) of which places an important role ofestablishing liability of the service provider.The main object of the present study is to present the provision of article 8 of the Law2251/1994 regarding the liability of the service provider, namely the banks, when dealingwith the consumers. Moreover, particular attention is given to the importance of thisprovision as the legal basis of the protection of the consumer, which appears as the feeblepart, when dealing with credit institutions such as the banks. The conditions of theapplication of this specific responsibility are analyzed as “ex lege-sui generis”responsibility of the service provider, giving particular mention to the banking transactions.The bigger part of the study is focused in the examination of its usefulness andapplication in concrete banking transactions. Finally, the study ends with a synopsis ofthoughts and conclusions for the particular physiognomy of this article, since it establishesa new self-existent legal reason of responsibility as well as an expedient and additionalmeans of protection for the consumer – customer of the Bank. In addition, the articleconstitutes an “important and prudent step while it does not reverse the general rules ofthe Code of Civil Law, but it enriches the statutory arsenal of the consumer”, meaning thatthis provision offers as a matter of fact de lege lata a new simple weapon in the statutoryarsenal of the consumer beyond the traditional provisions of the Code of Civil Law.Μoreover, the fact that the article establishes the “evidence of culpability” for theservice provider and the “legitimately anticipated safety” on behalf of the consumer, aswell as the “reverse burden of proof” for the lack of fault from the side of the serviceprovider, surely facilitates the protection of consumers.Having in mind the above mentioned, we could safely come to the conclusion thatarticle 8 of Law 2251/1994 in practice, constitutes a promoted innovation of the GreekLegislation in favour of the protection of the feeble party, which is the consumer,particularly in the banking services sector.
Διπλωματική εργασία - Πάντειο Πανεπιστήμιο. Γενικό Τμήμα Δικαίου, ΠΜΣ "Δίκαιο και Ευρωπαϊκή Ενοποίηση", κατεύθυνση Ιδιωτικό Δίκαιο, 2009