CIVIL LIABILITY OF BANKS IN ELECTRONIC FRAUD CASES: IMPLICATIONS FOR CIVIL PROCEEDINGS

• DOI: https://doi.org/10.22533/at.ed.8208622610036

• Palavras-chave: Civil Liability; Electronic Fraud; Banks; Civil Procedure; STJ Precedent 479; Reversal of the Burden of Proof.

• Keywords: Civil Liability; Electronic Fraud; Banks; Civil Procedure; STJ Precedent 479; Reversal of the Burden of Proof.

• Abstract:

  This study addresses the civil liability of financial institutions in light of the rise in electronic fraud within the context of Brazilian civil procedure. The general objective of the research is to analyze the strict liability of banks for damages resulting from such fraud, in light of the theory of risk of activity and consumer protection legislation. The specific objectives are: to examine the applicability of the Consumer Protection Code to banking relationships; to analyze the application of Precedent No. 479 of the Superior Court of Justice; and to investigate the main procedural implications of this liability, particularly the reversal of the burden of proof and the granting of emergency relief. The data sample comprises recent judicial decisions from the Superior Court of Justice and state courts, as well as specialized legal doctrine on the subject. Furthermore, the research problem lies in the effectiveness of judicial protection for consumers who are victims of electronic fraud, given the technical and informational asymmetry existing in their relationship with financial institutions. In this context, the following research question is formulated: to what extent are the available procedural instruments capable of ensuring effective redress for the damages suffered by consumers in cases of electronic banking fraud? The hypothesis posits that strict liability of banks, combined with the reversal of the burden of proof and emergency relief, constitutes an essential mechanism for consumer protection and for the effectiveness of judicial protection. Regarding the methodological approach, the deductive method is used, with qualitative research of a bibliographic and jurisprudential nature. Therefore, there is a need for a firm and consistent judicial stance that reconciles legal certainty with consumer protection, encouraging financial institutions to improve their security and fraud prevention systems.