A. The Defendant’s compulsory execution against the Plaintiff by the Seoul Northern District Court Decision 2008Gaso70498 against the Plaintiff is denied based on the decision of performance recommendation.

B. This Court approves the ruling of the suspension of compulsory execution as of June 10, 208 with respect to the case of applying for the suspension of compulsory execution No. 2008Kaman716.

2. The costs of the lawsuit are assessed against the defendant in the first and second instances.

3. The above paragraph 1(b) can be provisionally executed.

The reasoning for this part of the court's explanation is as stated in Paragraph 1 of Article 420 of the Civil Procedure Act, so that this part of the reasoning of the court's judgment is identical to that of Paragraph 1.

2. Judgment on the assertion

The plaintiff asserts that compulsory execution based on the above decision of performance recommendation should not be denied because there is no source of claim for the above decision of performance recommendation as follows.

A. Whether reimbursement is made to quasi-Possessors

The Plaintiff asserts that the credit card holders’ terms and conditions amended on May 27, 2005 (hereinafter “the instant credit card holders’ terms and conditions”) were not applied to the portion of KRW 5,016,300 that was withdrawn from deposits using the instant credit card, and the Plaintiff did not bear liability for compensation against the Defendant, and that the payment to the persons who entered the password is valid as repayment to quasi-Possessors.

First of all, as seen earlier, the terms and conditions of this case provide that "I will use a password in the case of using deposit-related transactions through an automatic machine" under Article 5 (3). Article 9 (1) provides that "I may receive cash services by means of an automatic payment machine, telephone, Internet, or other banks within the limit of cash services granted by a bank, and may receive deposit withdrawal from the automatic payment account through an automatic payment machine, and do not distinguish the cash delivery from the bank. However, the revised terms and conditions of credit card holders on April 28, 2008 do not provide that "I will not recognize the identity of the bank as being entered in the credit card transaction, such as cash service, card, electronic commerce, etc." and that "I will not recognize the identity of the member's bank under Article 22 of the terms and conditions of this case without any negligence if I do not recognize that I will not use the same as that of the member's bank's bank's bank's bank's own account, such as theft or loss of the credit card card or other accidents."

B. Whether the credit card holders are exempted from liability under the terms of the instant credit card holders

1) Parties’ assertion

The plaintiff asserts that the liability for compensation shall be discharged pursuant to Article 16 (4) 2 (hereinafter referred to as the "Terms and Conditions Provisions of this case") even if the Credit Card holders' terms and conditions are applied to the withdrawal of deposits as well as household cash services.

In this regard, the defendant asserts that the terms and conditions of this case are null and void as a clause that transfers the risk to the customer without reasonable grounds.

2) The validity of the terms and conditions of this case

Article 5(4) of the Terms and Conditions of Credit Card holders provides that all liability arising from the divulgence of a password to another person from a member shall belong to the member. The provision of this case provides that the illegal use of the password shall be excluded from compensation. However, a bank concurrently engaged in credit card business may secure not only profits from the use of a credit card by linking a credit card account with a bank account it operates, but also a bank account of its member as security. A credit card company may distribute its risk burden to a large number of member stores or credit card holders by reflecting losses arising from the illegal use of a credit card in its fees or annual fees of the member stores. On the other hand, the cash service or deposit withdrawal using a credit card only depends on the possession and password of the credit card holders, which is highly likely to deny the use of the credit card, and even if the Plaintiff bank completely bears the password of the electronic transaction, the bank shall bear the possibility of the divulgence of a password using the current science and technology without fault or negligence on the ground that it does not constitute an economic fault related to the transfer of the credit card holder to a third party.

3) Whether the defendant was negligent without fault

The defendant asserts that the password of this case was leaked from the member information managed by the plaintiff and that there was no intention or negligence on the part of the defendant, in light of the fact that 50 minutes after the theft accident occurred, the defendant entered the password without any room and received cash service and deposit withdrawal.

As seen earlier, there is no evidence to acknowledge the Defendant’s intention or negligence on the divulgence of a password, and instead, the password of the credit card of this case was made using a four-digit of the Defendant’s office phone number or workplace phone number or resident registration number, and was made by using the Defendant’s service. The Defendant was aware of the above password within a short time after the theft accident occurred and received cash service and deposit withdrawal through the cash automatic machine without a single room. Since the Defendant was only in a state at the time, it cannot be ruled out at all the circumstances where the credit card was sent to another person and was notified of the password, the Defendant’s allegation alone cannot be viewed as having no intention or negligence on the part of the Defendant.

C. Sub-committee

Therefore, the plaintiff is not liable for compensation to the defendant, and compulsory execution based on the above decision of performance recommendation should be dismissed.

3. Conclusion

If so, the plaintiff's claim of this case is accepted due to the reasons, and the judgment of the court of first instance which has different conclusions is unfair, so it is to be modified as ordered by the judgment of the court of first instance.

Judges Sick Modle (Presiding Judge)