In exceptional cases where a third party, other than the deposit title holder, is deemed a party to the deposit contract, and in case where a dispute arises between the deposit title holder and the third party regarding the right to claim the return of deposit, whether the act of the financial institution dealing with the deposit transaction on the premise that the deposit title holder is

In order to view the contributor, etc. other than the deposit title holder as the party to the deposit contract after taking the real name verification procedure of the deposit title holder according to the intent of the deposit title holder as the deposit title holder, and preparing the deposit account statement as the deposit title holder, the act of the financial institution should be protected as legitimate, unless there are special circumstances, by denying the right to claim the return of the deposit made in writing with the deposit title holder, and by concluding the deposit contract with the contributor, etc. and by concluding the deposit contract with the fund manager, etc...

Article 105 of the Civil Act, Article 1, Article 2 subparag. 4, and Article 3(1) of the Act on Real Name Financial Transactions and Confidentiality

Supreme Court en banc Decision 2008Da45828 Decided March 19, 2009 (Gong2009Sang, 456)

Plaintiff

Nonghyup Bank Co., Ltd. and one other (Law Firm Yang Hun, Attorneys Kim Jae- Jae et al., Counsel for the plaintiff-appellant)

Gwangju High Court Decision 201Na5089 decided November 21, 2012

The part of the judgment of the court below against the Defendants regarding the conjunctive claim is reversed, and that part of the case is remanded to the Gwangju High Court. It is corrected to add “the plaintiff’s primary claim added in the trial is dismissed” under Article 1 of the decision of the court below.

The grounds of appeal are examined.

1. In order to view the contributor, etc. who is not the deposit title holder as a party to the deposit contract even though the procedures for verifying the actual amount of the deposit title holder were conducted according to the intent of the deposit title holder, and the written statement of the deposit title holder was prepared as the deposit title holder, it shall be deemed extremely exceptional cases where there is a clear agreement between the financial institution and the contributor, etc. to exclude the right to claim the deposit from the deposit title holder, and to vest the right to claim the deposit in the contributor, etc. by entering into the deposit contract with the contributor, etc. (see Supreme Court en banc Decision 2008Da45828, Mar. 19, 2

On the other hand, in light of the above principle of confirmation of deposit account holder under the real name of the financial institution, if there is a dispute over the attribution of the right to claim the return of deposit between the deposit account holder and the fund contributor, the financial institution will deal with the deposit account transaction on the premise of deposit account holder, regardless of whether it was aware of the internal legal relationship among the deposit account holder and the fund contributor, and such act of such

2. The judgment of the court below

A. The lower court acknowledged the following facts based on the evidence in its judgment.

1) On March 16, 201, the Plaintiff: (a) deposited KRW 400 million into the account in Nonparty 1’s name; and (b) issued a certificate of deposit balance equivalent to that amount; (c) on behalf of the Plaintiff, the Plaintiff agreed to open the deposit account and issue the certificate of deposit balance; and (d) withdraw it by directly withdrawing KRW 400 million from the said account after issuing the certificate of deposit balance.

Accordingly, Nonparty 1 issued to the Plaintiff a certificate of personal seal impression, seal imprint, resident registration certificate, proxy, etc. necessary for banking operations along with the certificate of borrowing KRW 400 million. On the other hand, Nonparty 1 prepared and issued a certificate of personal seal impression, seal imprint, resident registration certificate, and proxy letter stating that no right exists with respect to the money deposited in the above deposit account, and cash withdrawal using a deposit passbook, seal seal report, electronic financial, cash card, etc. is not made nor arbitrarily changed all information in the deposit account, including a password

2) At around 15:40 on the same day, the Plaintiff opened the instant deposit account in the name of Nonparty 1 on behalf of Nonparty 1 at the location of Defendant 2’s branch office, and deposited KRW 400 million on behalf of Nonparty 1, and received a certificate of deposit balance equivalent to the same amount.

Defendant 2, upon the Plaintiff’s request at the time, withdrawn KRW 400 million from the instant deposit account and deposited it into the Plaintiff’s account under the Plaintiff’s name. Accordingly, Defendant 2 received the Plaintiff’s deposit passbook and the money withdrawal slip (the password was stated by the Plaintiff at the time of opening the instant deposit account), and the deposit slip in the Plaintiff’s name.

3) However, at around 16:20 on the same day, Nonparty 1 applied for Internet banking at Defendant Bank's leisure culture point. On March 17, 2011, at around 08:16, Nonparty 1 changed the password from Defendant Bank's license to the deposit holder's license at Defendant Bank's Hongk Seoul Hongk Branch, making it impossible to receive deposit withdrawal even if it is based on the legitimate password by entering a voluntary password via the Internet banking three times on March 17, 201.

4) On March 17, 201, according to the Plaintiff’s promise, Defendant 2 attempted to withdraw KRW 400 million from the instant deposit account, but failed to withdraw the password due to the entry error, and the Plaintiff was informed of this fact immediately. Defendant 2 requested Defendant 2 to suspend the payment of the instant deposit account on the ground that “the Plaintiff was the deposit owner of the instant deposit account, which is Nonparty 1, and thus, the Plaintiff could not be suspended from payment on the sole basis of the Plaintiff’s request, and need to grasp the truth about the entry error.”

5) Around 08:43, when the Plaintiff again requested Defendant 2 to suspend payment of the instant deposit account by means of account transfer using Internet banking devices, KRW 100 million was transferred to the national bank account in the name of Nonparty 2, and KRW 100 million was transferred to the bank account in the name of Nonparty 3 at around 08:44 (hereinafter “the instant bank account”). Accordingly, Defendant 2 registered suspension of payment to the instant bank account in order to prevent additional funds transfer, around 08:44.

6) At around 08:50 on the same day, the Plaintiff found Defendant Bank Branch and confirmed the fact that KRW 200 million was transferred, and then requested Defendant 2 to suspend payment of the account used for the instant crime. Defendant 2 rejected such request on the ground that the said transfer does not constitute an occurrence of a financial accident, which is a reason for requesting the suspension of payment to another financial institution. Defendant 2 requested the relevant bank to suspend payment by telephone around 09:28 and 09:29 on the same day, but the said bank had already been withdrawn at around 09:07. The Plaintiff discovered the password changed from Nonparty 1, and then withdrawn and recovered the balance remaining in the instant bank account on March 21, 2011.

7) The basic terms and conditions of deposit transactions of Defendant Bank provide that the reporter shall be reissued or paid after necessary measures are taken by the customer, such as confirming the customer himself/herself, in cases where the report on the loss, theft, loss, damage, or damage of the passbook, paper, card, or securities, etc. is received from the customer. The joint agreement, etc. for the prevention of financial accidents in which the Defendant Bank joined may request the other financial institution to suspend payment of the transferred account in cases where the funds are transferred to the other financial institution due to financial accidents. As one of the financial accidents, the cases of suspected crimes, such as embezzlement, breach of trust, public conflicts, theft, money and valuables, intermediary related to savings, unfair conduct related to savings,

B. The lower court determined as follows based on the above findings of recognition.

1) There is no evidence to acknowledge that there is a clear agreement between the Plaintiff and the Defendant bank to deny a deposit contract with Nonparty 1, which was made in writing, and to vest the right to claim the return of the deposit in the Plaintiff, who is the contributor. Thus, the Plaintiff’s primary claim seeking the return of the deposit against the Defendant bank on the premise that the deposit owner in the instant deposit account is the Plaintiff

2) Considering the circumstances indicated in its reasoning, Defendant 2 had immediately taken necessary measures when receiving a request from the Plaintiff for the suspension of payment, etc., but later, requested a national bank, etc. to register the suspension of payment on the instant deposit account and to suspend payment on the instant other deposit account. Accordingly, the Plaintiff’s conjunctive claim against the Defendants for tort liability and its employer liability is reasonable.

3. Judgment of the Supreme Court

However, it is difficult to accept the judgment of the court below on the plaintiff's conjunctive claim for the following reasons.

A. If the facts are as above, the party to the deposit contract of this case is only Nonparty 1, and the Plaintiff contributed funds pursuant to a monetary loan agreement, etc. entered into with Nonparty 1 so that Nonparty 1 may obtain a certificate of deposit balance, and the Plaintiff is merely an exercise of authority over entering into the deposit contract of this case on behalf of Nonparty 1 in order to prevent Nonparty 1 from using the funds and safely recover them.

B. However, at the time of the instant case, the Plaintiff requested the Defendant 2 to suspend payment in order to safely recover the funds it contributed as the account holder or the fund contributor. As seen earlier, the Plaintiff does not constitute the account holder in the instant deposit account, and as such, the suspension of payment under the bank transaction basic terms and conditions was prepared to prevent unfair infringement of the right to claim the return of deposit principal, Defendant 2 does not bear a legal obligation to comply with the Plaintiff’s request for suspension of payment, which is merely the fund contributor.

C. As long as the password is modified against the Plaintiff’s will that actually controlled and managed the funds deposited in the deposit account of this case and the funds transfer is made, it is difficult to conclude that the request for payment suspension against other financial institutions as stipulated in the joint agreement, etc. for the prevention of financial accidents was made immediately on the basis of such suspicion. However, it is difficult to expect that the request for payment suspension against Defendant 2 was made immediately. Since the Plaintiff is merely an agent of Nonparty 1, the deposit owner, and the details of the entry errors or funds transfer are unclear at the time, it is necessary to grasp more facts in order to determine the occurrence of the financial accident alleged by the Plaintiff. However, it does not mean that Defendant 2 delayed the request for payment suspension against the national bank, etc. by making a final decision after such investigation and confirmation.

D. The lower court determined that Defendant 2’s payment suspension should have been settled in accordance with the relevant procedure, if there is a dispute as to the location of the right to request the return of deposit between the Plaintiff and Nonparty 1. However, in light of the aforementioned legal doctrine, the financial institution should manage all legal relations on the premise of the deposit owner without being bound by the internal relationship between the contributor and the title-holder of the deposit title-holder; and the suspension of payment, etc. is a right and duty to investigate and confirm the relevant facts to a certain extent before the financial institution suspends payment, etc. in light of the fact that there is a risk that may cause an obstacle to the exercise of legitimate right to the deposit principle. In addition, it is reasonable that Defendant 2’s ex post payment suspension is made at the discretionary level upon acceptance of the Plaintiff’s request by the Plaintiff. Therefore, it is not reasonable to accept the Plaintiff’s obligation

E. In full view of these circumstances, in the instant case, it is difficult to readily conclude that Defendant 2 sustained a loss of KRW 200 million on the wind, which neglected the obligation of Defendant 2 to take a measure to suspend payment upon the Plaintiff’s request, despite such obligation.

Nevertheless, the lower court recognized Defendant 2’s liability for damages due to Defendant 2’s breach of duty, such as the suspension of payment. In so doing, the lower court erred by misapprehending the legal doctrine on the financial institution’s duty to suspend payment, thereby adversely affecting the conclusion of the judgment. The Plaintiff

4. Conclusion

Therefore, without further proceeding to decide on the remainder of the grounds of appeal, the part against the Defendants regarding the conjunctive claim is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. However, there is an error in part of the decision of the court below (the plaintiff changed the purport of the judgment by the court below that the plaintiff's primary claim against the Defendants was a preliminary claim and added the claim for the return of deposit against the Defendant bank to the primary claim, and the court below determined that the plaintiff's primary claim is not reasonable, but omitted in the text of the judgment) by adding "the dismissal of the plaintiff's primary claim added at the court below" in Article 1 (1) of the decision of the court below. It is so decided as per Disposition

Justices Park Poe-dae (Presiding Justice)