Transformación y modernización de los servicios de contratación bancaria con consumidores y usuarios

Resumen

Hiring in business, both within the retail sector and in the field of banking contracts, until the last years of twentieth century, had been developed mostly in person, physically, and documented on paper. New technologies, telematics, internet and mobile telephony, burst into the Spanish market in a decisive way in the late twentieth century, with a vocation to facilitate communication between traders enabling market expansion of services and facilitating access to the hiring more potential customers, both within the country and internationally. This new way of hiring is effective for both the provider benefits from a reduction in infrastructure costs and staff, and the consumer, in consequence of the above, can purchase goods and services at lower prices and without scrolling supplier installation. The agility and comfort o this form of contract, means certain risks for the consumer that we can not ignore, in particular, the asymmetry between the parties, supplier and consumer in the bargaining level and in the information that has the supplier and which is provided to the consumer. This imbalance between the parties, and the need to regulate the electronic market, stirs in our lawgiver a regulatory effort, with varying success, but managed to lay the foundations of a sufficiently guarantor regulatory framework for the most disadvantaged part in the legal relationship as the consumer. The subjective element whose presence is constant in either face or remotely contractual relationship, it is always the consumer, customer or user whose rights are protected. The normative regulation, given the rapid evolution of new models and techniques for sign contracts, is dispersed since our legislature has adapted to events with no room to undertake a single text where you can combine all matters relating to commerce and e-procurement. Consequently it has been forced to regulate the national legislature according to market demand trying to get a seamless adaptation process, or at least the minimum possible, and obviously in line with the deadlines set by the European legislator, to so it is not daring to assert that we have a regulatory coverage according to our market, in line with the requirements of the European legislator, and ready to welcome and meet the challenge of participating in the work of the undivided state on consumer as are the Project Common European Framework of Reference (Draft Common Frame of Reference-DCFR), and the proposed Common European Sales Law (Commom European Sales Law-CESL). We highlight the normative texts that somehow are the leader in electronic trading and provide the indispensable to move in an environment of legal certainty sufficient coverage, such as Law 32/2003 of November 3, General of Telecommunications; Law 59/2003 of 19 December on Electronic Signature; Law 21/2011, of July 26 Electronic Money; Law 34/2002, of July 11, Services Information Society and Electronic Commerce; Law 56/2007 of 28 December on Measures to Promote the Information Society, indicative of the progress and implementation of new technologies in our economy. However the specificity of these regulatory texts and its proper application, the effective protection of consumer rights is achieved in our legal system, particularly in the consumer area, with the implementation of the revised General Act Protection of Consumers and Users, text always applies when a consumer is involved. It must ask ourselves what are the specific means or instruments giving effect to the protection of consumer rights. The consumer protection mechanism par excellence is the right of withdrawal, originally, part of the idea of right of renunciation but does not stop there, the right of withdrawal has the effect or result: inefficiency of the legal business in respect of which it is exerted. It is awarded accordingly consumers a second chance that allowing you to assess and weigh the contractual relationship, and decide whether buying or requested service, really they are of interest and can be separated from it without legal or economic consequences for him, and without provider justify its decision. The protection of consumer interests or rights, is particularly important in the marketing of banking products both personal meetings and remotely. The customer-consumer is deserving of special protection, given the situation of bargaining and information asymmetry to which we have referred. Consider that the client is facing a membership contract with clauses predisposed by the supplier, and in which little or nothing to intervene, must assume the clauses to be present (in many cases may become abusive clauses ), and being knowledgeable not accept that, most likely you will not get the funding or service requested. In this legal relationship in all its aspects, in person, physically or distance, the duties of information to be provided to the customer play an important role, so that the omission of pre reporting obligations may result in the nullity of the contract. This consequence, the annulment of the contract, it is understandable if we start the budget that information plays an essential role in the formation of customer goodwill. The customer receives from the supplier specific information relating to goods or services seeking to recruit, and from the same, so their willingness to engage, so that this be omitted or erroneous information, the expression of consent is vitiated, this being a matter of contractual nullity. Contractual information, Law 16/2011 of 24 June consumer credit contracts, it is common reference throughout the legislative text (Article 7, Chapter II almost entirely, and provisions of Chapter IV), that puts us in the importance of the information duties in recruitment, not just consumers. We can say that new technologies, its appearance in recruitment, has provoked a furious legislation, jurisprudence and doctrinal change in the European and national level in less than fifteen years, forcing us to carry out a rigorous adaptation in all fields , arbitrating legal mechanisms that balance consumer protection situations asymmetry in consumer contracts. In this regard, national surrounding the proposed modernization of the Civil Code on obligations and contracts, and the Proposed Commercial Code, legislative efforts represent an exceptional means of legislative harmonization that strengthen the pillars of procurement law.