[1] The method of determining the party to the deposit contract under the title of the financial real name, exceptional cases where a third party, other than the title-holder of the deposit, can be seen as a party to the deposit contract,

[2] Where Party A entered into a deposit contract in the name of Party B on behalf of Party B, following the real name verification procedure with Party B, the case reversing the judgment below which held Party A as a party to the deposit contract on the ground that an implied agreement was concluded between the financial institution and Party A to appoint the contributor A, who is not the deposit title holder, as the party to the deposit contract solely on the ground that the fund contribution circumstance, the registration and management of transaction seal and password, which is merely an internal legal relationship with Party B, and the deposit withdrawal situation

[1] [Majority Opinion] In a case where a deposit contract is concluded through a real name verification procedure under the Act on Real Name Financial Transactions and Confidentiality and the fact is clearly indicated in the real name verification statement, it is reasonable to interpret that the deposit title holder, the actor, and the intent of a financial institution representing him/her, as the deposit owner, intends to appear as the party to the deposit contract. It is reasonable to clarify the legal relationship as to the party to the deposit contract. Furthermore, such legal principle as to the interpretation of the party to the deposit contract should be applied equally in cases where the deposit title holder, the deposit title holder, etc. appeared in the financial institution, or a third party, such as the fund contributor, etc. (hereinafter referred to as the “contributed, etc.”) entered into the deposit contract as the proxy. Accordingly, in order to regard the fund contributor, etc. other than the deposit title holder as the party to the deposit contract, if it is possible to regard the deposit title holder as the party to the deposit contract after the real name verification procedure with the financial institution, etc., and it should be justified in accordance with the objective and strict evidence of the real name verification procedure.

[Concurring Opinion by Justice Park Si-hwan] Article 3(1) of the Act on Real Name Financial Transactions and Confidentiality provides that a deposit contract shall go through a real name verification procedure as a requirement for a deposit contract, and it shall be deemed a mandatory provision denying the validity of a deposit contract contrary to the purport of the aforementioned provision. Therefore, the said separate agreement itself shall be deemed null and void as it violates Article 3(1) of the Act on Real Name Financial Transactions and Confidentiality, which is a mandatory provision, regardless of whether the parties have left clear and objective evidence as to the separate agreement, where the contributor, etc. separately agreed in the deposit contract in the name of the deposit title-holder after going through a real name verification procedure in the name of the deposit title-holder, and the fund contributor, etc. is the party to the deposit contract who is entitled to a claim for the return of deposit under the agreement with the financial institution, etc.

[2] In a case where Party A entered into a deposit contract in the name of Party B on behalf of Party B, following the real name verification procedure with Party B, the case reversing the judgment below which held Party A as a party to the deposit contract on the ground that an implied agreement was concluded between the financial institution and Party A to appoint a contributor A, who is not the deposit title holder, as a party to the deposit contract solely on the ground that the fund contribution circumstance, the registration and management of transaction seal and password, which is merely an internal legal relationship with Party B, and the deposit withdrawal

[1] Articles 1, 2 subparag. 4, 3(1), 7, and 8 of the Act on Real Name Financial Transactions and Confidentiality; Article 3 subparag. 1 of the Enforcement Rule of the Act on Real Name Financial Transactions and Confidentiality; Article 5-2 of the Act on Reporting and Using Specified Financial Transaction Information; Article 10-4 of the Enforcement Decree of the Act on Reporting and Using Specified Financial Transaction Information; Article 105 of the Civil Act / [2] Article 3(1) of the Act on Real Name Financial Transactions and Confidentiality; Article 105 of the Civil Act

[1] Supreme Court Decision 9Da67031 delivered on March 10, 200 (Gong2000Sang, 948) (amended) Supreme Court Decision 2002Da29244 delivered on August 23, 2002 (amended) Supreme Court Decision 2001Da38463 delivered on September 24, 2002 (amended) Supreme Court Decision 2003Da52364 delivered on February 13, 2004 (amended) Supreme Court Decision 2004Da2989, 2996 delivered on December 10, 200 (amended) Supreme Court Decision 2005Da1251 delivered on June 9, 2005 (amended)

Plaintiff (Attorney Oi-hwan et al., Counsel for plaintiff-appellant)

Korea Deposit Insurance Corporation (Attorney Kim Jong-soo, Counsel for defendant-appellee)

Seoul Central District Court Decision 2007Na37911 Decided June 4, 2008

The judgment of the court below is reversed, and the case is remanded to the Seoul Central District Court Panel Division.

The grounds of appeal are examined.

1. In a case where a person who intends to enter into a deposit contract with a financial institution has entered into a deposit contract in the name of another person, the question is the party to the deposit contract, i.e.,

A. Generally, who is a party to a contract constitutes a matter of interpretation of the intent of the party involved in the contract. Interpretation of an expression of intent is clearly confirming the objective meaning that the party has given to the expression of intent. In a case where the content of a contract is written in writing between the parties as a disposal document, the objective meaning that the party gives to the expression of intent shall be reasonably interpreted according to the contents written, regardless of the party's internal intent (see, e.g., Supreme Court Decisions 94Da5122, Jun. 20, 1995; 2002Da23482, Jun. 28, 2002; 2002Da72572, May 24, 2002; 2003Da38738, Apr. 28, 2004).

B. In addition, financial transactions, such as a deposit contract in large volume and repeatedly, should be treated as a type and prompt manner by a financial institution, and it is necessary to normalize financial transactions by making clear to whom the right to claim a return of deposit, etc. based on the deposit contract belongs, transparent financial transactions are needed. For this purpose, the Act on Real Name Financial Transactions and Confidentiality (hereinafter “Act on Real Name Financial Transactions and Confidentiality”) established to clarify who is the deposit owner, etc. who has the right to claim a return of deposit based on the deposit contract was prepared to undergo a real name verification procedure prior to the conclusion of the deposit contract, and accordingly, the identity of the deposit owner who has the right to claim a return of deposit arising from the deposit contract should be interpreted based on the intention of the party objectively confirmed by the real

In other words, the Act on Real Name Financial Transactions is enacted for the purpose of realizing economic justice and promoting the sound development of the national economy by implementing real name financial transactions and protecting financial secrets through normalized financial transactions (Article 1). Article 2 subparagraph 4 of the Act defines real name as the name on the resident registration card, the name on the resident registration certificate, the name on the business registration certificate, and other names as prescribed by the Presidential Decree (Article 2 subparagraph 4 of the Act). Article 3(1) of the Act provides that a financial institution shall conduct financial transactions under the real name of a trader (Article 7 and Article 8 of the Act). Furthermore, the Enforcement Rule of the Act provides for the method of verifying real name transactions by classifying it into an individual, corporation, or non-corporate organization, etc., and provides for the method of verifying real name transactions by classifying it into a real name registration certificate or resident registration certificate in case of an individual, for example, the government agency, local government, or school under the Education Act issued by the head of the school to verify real name verification certificate or resident registration certificate (Article 3(1).

Since the enactment and enforcement of the Act on Real Name Financial Transactions and Confidentiality was obligated to conduct financial transactions under the real name on August 12, 1993, all financial transactions, in principle, except in exceptional cases such as partial small-amount remittance as prescribed by the Act on Real Name Financial Transactions (Article 3(2)), have been widely recognized for all citizens. Accordingly, in the basic terms and conditions related to the deposit contract of a financial institution, it imposes not only financial institutions but also customers the obligation to comply with the request for verification of real name, etc., along with the real name transaction obligation. In the deposit transaction, the deposit transaction imposes the obligation to comply with the request for verification of real name, etc. on the part of the customer as well as the financial institution. In this regard, the deposit transaction, after verifying the real name of the deposit title holder by the original document that can prove the real name of the deposit account at the time of opening the deposit account, indicate the "verification of real name" in the transaction ledger, deposit transaction application, deposit contract document, etc., and has a firm practice with which the verified person affix seals or sign.

In addition, the Act on Reporting and Using Specified Financial Transaction Information as amended on January 17, 2005 newly establishes a provision on the duty of customer care of financial institutions, etc. to prevent money laundering, and where a customer newly opens an account or makes a single financial transaction more than the amount determined by the Presidential Decree as a reasonable caution to prevent money laundering using financial transaction, the customer confirms the identity of the transaction party and confirms the transaction purpose of money laundering if there is concern for the customer to do money laundering (Article 5-2). According to the provisions of the Enforcement Decree of the Act, it further strengthens the procedures for confirming the transaction of financial business (Article 10-4 of the Enforcement Decree of the Act) by allowing the customer to check address, contact address, etc. other than the real name prescribed by the Act on Real Name Financial Transactions (Article 10-4 of the Enforcement Decree of the Act).

Therefore, in the case of a financial transaction contract such as the deposit contract, it is more objectively indicated through the real name verification procedure than in the case of other contracts, that is, the party to the deposit contract, the deposit holder with the right to claim the return of deposit.

C. In particular, there was room to interpret that a financial institution’s intent to contribute funds and to enter into a deposit contract with a person who controls the deposit without asking regardless of the deposit account holder’s name, and there was no room to protect the trust of a financial institution in the deposit name. However, it should be deemed that a person who has entered into a real name verification through a resident registration certificate, etc. has expressed his/her intent to enter into a deposit contract with a financial institution as a “ trader” under Article 3(1) of the Act on Real Name Financial Transactions, barring any special circumstance, barring any special circumstance. Moreover, a financial institution that is required to promptly and regularly deal with deposit transactions conducted in large volume and repeatedly, and is also a financial institution that is required to promptly and regularly deal with such transactions, whether the contributor is the contributor, and what internal relationship with the person who has entered into a deposit contract with the person who has entered into a deposit account, to prevent disputes over the confirmation of the party to the deposit contract and to clarify the legal relationship between the contributor and the person who has entered into a deposit contract.

D. Ultimately, in full view of the general legal principles on the interpretation of expression of intent expressed in the disposition document as seen above, as well as the legislative purport thereof, basic terms and conditions related to the deposit contract, financial practice, peculiarity of deposit transaction, intent of the deposit title holder, and necessity of protection of trust of the financial institution, in cases where the deposit contract was concluded through the real name verification procedure pursuant to the Act on Real Name Financial Transactions and the fact of the contract is clearly stated in the real name verification statement, etc., it would be reasonable to interpret that the deposit title holder or the person acting on behalf of the deposit title holder or the person acting on behalf of the deposit title holder as a party to the deposit contract is to regard the deposit title holder as a party to the deposit contract, and to clarify the legal relationship as to the party to the deposit contract. Such legal principles on the interpretation of the party to the deposit contract should be applied equally to cases where the person on deposit title holder was present in the financial institution and a third party (hereinafter referred to as the “Contributor, etc.”) such as

E. Therefore, even though the real name verification procedure of the deposit title holder was conducted according to the intent of the deposit title holder, and the deposit account statement was prepared by the deposit title holder as the deposit owner, if it is intended to view the contributor, etc. who is not the deposit title holder as the party to the deposit contract, the right to claim the return of the deposit under the deposit title holder should be denied in writing between the financial institution and the contributor, etc., and it should be limited to extremely exceptional cases where there is a clear agreement with the contributor, etc. to exclude the right to claim the return of the deposit from the deposit title holder, and by concluding the deposit contract with the contributor, etc., it should be strictly recognized based on specific and objective evidence sufficient to reverse the probative value of the deposit statement, etc. prepared through the real

In other words, in order to interpret that a financial institution which needs to carry out the obligation of real name verification under the Act on Real Name Financial Transactions and that a financial institution, as it is necessary to process deposit transactions regularly and promptly, treats itself as a party to the deposit contract and agrees to the fund contributor, etc. who has been an agent as a party to the deposit contract, there should be special grounds to deem that the financial institution and the employee in charge of such financial institution have reached such an agreement even when taking charge of administrative sanctions due to the violation of the Act on Real Name Financial Transactions and the risk of disputes surrounding the confirmation of deposit holders in the future. However, it is difficult to deem that the financial institution has reached such agreement even with the burden of such disadvantages and risks as above.

In addition, unless it is recognized that a financial institution has clearly confirmed the personal information of a contributor, etc. as at the time of entering into a deposit contract, and that the contributor, etc. excluded the intent of the title-holder indicated in the preparation, etc. of the deposit contract and made it clear that it has the authority to enter into a deposit contract to vest in the contributor, etc., it cannot be readily recognized that the financial institution agreed to the effect that the contributor, etc., who is mere preparing the deposit contract in the capacity of the agent of the title-holder of the deposit title-holder, was the party to the deposit contract. This is because the financial institution is not clearly aware of

In addition, the circumstance that the contributor, etc., after the conclusion of the deposit contract did not deliver the deposit passbook and his seal imprint, etc. to the deposit title holder and possessed the interest, principal, etc., and the financial institution was not clearly known at the time of entering into the deposit contract. Thus, it cannot be concluded that the financial institution had intent to enter into the deposit contract with the contributor, etc. at the time of entering into the deposit contract. Furthermore, even if the financial institution was aware of the aforementioned circumstances at the time of entering into the deposit contract, it may be interpreted that the contributor, etc., under the premise that the right to claim the deposit under the deposit contract belongs to the deposit title holder in relation with the financial institution, holding the deposit deposit passbook and seal as delegated by the deposit title holder, or exercising the right to claim the return of the deposit (see, e.g., Supreme Court Decision 2002Da4074, Jan. 24, 2003). It is difficult to view the legal relationship between the deposit title holder and the investor, etc., as well as the legislative purport and password of the deposit deposit deposit account as the Act.

F. In a case where a deposit contract was made in the name of the contracting party under the Real Name Financial Transactions Act by preparing a statement of deposit, etc. after undergoing a real name verification procedure with respect to the deposit title holder under the Act on Real Name Financial Transactions, the Supreme Court Decisions 9Da67031 Decided March 10, 200; 2002Da29244 Decided August 23, 2002; 201Da384634 Decided September 24, 2002; 201Da36450 Decided September 24, 2005, which held that all other Supreme Court Decisions 9Da6705 Decided March 10, 200, 202; 2002Da29244 Decided August 23, 2002; 201Da3846364 Decided 294 decided September 24, 2002; 2004Da3654369 decided March 264, 2004, 209.

2. According to the facts established by the lower court and the evidence duly admitted by the lower court, on February 13, 2006, the Nonparty, the husband of the Plaintiff, opened a new account in the name of the Plaintiff in good mutual savings bank (hereinafter “instant savings bank”) on behalf of the Plaintiff, and deposited KRW 42 million in the name of the Plaintiff. At the time of opening the instant deposit account, the applicant’s name and resident registration number are written in the deposit transaction application column, and the copy of the Plaintiff’s resident registration certificate is attached to the deposit transaction application column. The confirmation seal of the person in charge and the responsible person is affixed to the real name verification column of the said deposit transaction application. The passbook, etc. in the instant deposit account was issued in the name of the Plaintiff, and the current status of the transaction of the Nonparty bank was stated as the right holder of the instant deposit account.

In light of the legal principles as to the interpretation of the party to the deposit contract as seen earlier and the factual relations, the Nonparty, on behalf of the Plaintiff, prepared and submitted an application for deposit transaction under the name of the Plaintiff to the employee in charge of the savings bank, and also applied for the opening of the deposit account under the name of the Plaintiff as the title-holder of the deposit deposit account by submitting the Plaintiff’s resident registration certificate as a certificate necessary for the real-name verification procedure. The employee in charge of the savings bank, upon acceptance of such application, expressed his intent to conclude the deposit contract with the Plaintiff by entering in the deposit transaction application in the name of the Plaintiff. As such, based on specific and objective evidence having clear probative value sufficient to reverse the probative value of the above deposit transaction application prepared through the real-name verification procedure, the Nonparty’s claim for return of deposit is deemed to be the Plaintiff, unless it is deemed that the Nonparty bank and the Nonparty had a clear agreement to exclude the Plaintiff’s claim for return of deposit by denying the deposit contract with the

However, the court below held that the above 42 million won was withdrawn from another deposit account opened in the name of the non-party, and deposited in the other deposit account of this case. The above deposit transaction application was made by the non-party, and the non-party's seal was registered and used as a transaction seal, and the password of the other bank account of this case was identical to that of the non-party's regular deposit account under the non-party's name. The court below concluded an implied agreement between the non-party savings bank and the non-party to the deposit contract to which the non-party other than the plaintiff entered as the title-holder of the deposit transaction application of this case belongs after undergoing a real name verification procedure.

As above, the court below held that the non-party, other than the plaintiff as the deposit title holder, is the party to the deposit contract to which the right to claim the return of the deposit in the deposit account in this case belongs on the ground that the non-party savings bank cannot clearly understand clearly at the time of opening the deposit account in this case or the deposit contract with the non-party savings bank merely within the internal legal relations between the non-party bank and the non-party bank, such as the registration and management of transaction seal and password, and the withdrawal of the deposit. The court below erred by misapprehending the legal principles as to the interpretation and confirmation of the party to the deposit contract in this case under the real name

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices, except there is a separate opinion by Justice Park Si-hwan, and a concurrence with the Majority by Justice Cha Han-sung and Justice Yang Chang-soo.

4. The separate opinion by Justice Park Si-hwan is as follows.

A. The Majority Opinion basically agrees with the legislative intent of the Act on Real Name Financial Transactions and Confidentiality (hereinafter “Act on Real Name Financial Transactions”) that respects the legislative intent of the said Act, and that the scope of the fund contributors, etc. recognized as the party to the deposit contract having the right to claim the return of deposit under the deposit contract is hidden behind without undergoing the real name verification procedure. However, we cannot agree with the approach of the Majority Opinion, which seeks to resolve the issue to which person should be determined as the deposit owner in accordance with the general legal principles as to the interpretation of expression of intent under the real name financial transaction system, rather than the issue of interpretation of intention, should be approached to the issue where it is permitted to recognize the status as the deposit owner to a person other than the deposit title-holder under the current financial system enacted by the Act on Real Name Financial Transactions and Confidentiality, etc.

The Majority Opinion, based on the general legal principles on the interpretation of expression of intent in the contract, intends to resolve the issue of confirmation of the owner of a deposit under the real name financial system, thereby creating unreasonable results that, notwithstanding Article 3(1) of the Act on Real Name Financial Transactions, in cases where a financial institution and a contributor, etc. enter into a deposit contract in the name of the title-holder of a deposit account after undergoing a real name verification procedure in the name of the title-holder of a deposit account, the said financial institution and the contributor, etc. agreed to have the contributor, etc. as the party to the deposit contract with the right to claim the return of deposit under the mutual agreement and planned the violation of the Act on Real Name Financial Transactions, such as keeping specific and objective

Therefore, unlike the opinion of the majority opinion, the issue of confirmation of deposit holders under the Real Name Financial Transactions Act shall start from deeming Article 3 (1) (B) of the Real Name Financial Transactions Act as a mandatory provision, and only if so, it can achieve the legislative purpose of the Real Name Financial Transactions Act faithfully.

B. The purpose of the Act is to realize economic justice and promote the sound development of the national economy by implementing real name financial transactions and protecting the confidentiality thereof (Article 1). Article 3(1) of the Act on Real Name Financial Transactions provides that financial institutions shall conduct financial transactions under the real name of customers (Article 3(1)). The de facto financial transactions conducted with the reduction of their real names are not only to expand voice financial transactions but also to distort the economic structure, but also to negative impacts on each sector such as politics, economy, society, and culture, and also to act as a source of social corruption and corruption, such as sound financial behavior, raising funds, and real estate speculation. It is highly necessary to strictly regulate such transactions as avoidance of comprehensive taxation on financial income, evasion of inheritance tax, corporate tax, etc., concealment of various criminal proceeds, money laundering, etc.

Nevertheless, the legislative purpose of the Act on Real Name Financial Transactions in order to promote the sound development of the national economy through the normalization of financial transactions, if the contributor, etc. agrees to make the contributor, etc. as the deposit owner under the agreement with a financial institution while making a contract under the name of the deposit title-holder on behalf of the deposit title-holder after going through the real name verification procedure, and to keep clear evidence thereof, etc., if it is interpreted that the contributor, etc. can become a party to the deposit contract with the right to claim the return of deposit under the deposit contract, the legislative purpose of the Act on Real Name Financial Transactions in order to normalize the financial transactions by establishing the financial transaction under the real name so long as the financial transaction can be achieved by preventing various irregularities, corruption, tax evasion, evasion, illegal acts, etc. which have been spread, and by establishing a foundation for establishing the economic justice through the normalization of the financial transaction, is considerably damaged. As such, a person who agrees to take his real name as the deposit owner in violation of the Act on Real Name Financial Transactions and concluding the deposit contract under the name of another financial institution is highly likely to perform such act.

In order to regulate anti-social acts that seriously go against the public interest and to secure the effectiveness of the real name verification procedure, which is an essential means to achieve the legislative purpose of the Act on Real Name Financial Transactions, it is insufficient to impose an administrative fine under Articles 7 and 8 of the Act on Real Name Financial Transactions and Confidentiality on an executive officer or employee who violates Article 3(1) of the Act on Real Name Financial Transactions or a financial institution. The Emergency Financial Economic Order on Real Name Financial Transactions and Confidentiality was issued on August 12, 1993, and thereafter, even after the long period of time has elapsed since the Act on Real Name Financial Transactions and Confidentiality was enacted and implemented, the fact that the Act does not cease to exist, such as raising various funds using a deposit account in another person’s name, giving or receiving unsound funds, and evading taxes, etc., has a limitation from the interpretation of Article 3(1) of the Act on Real Name Financial Transactions and thus, it should not be deemed that the fund contributor, etc. is an owner of a deposit contract, which goes against the purpose of the Act on Real Name Financial Transactions and thus should not be regarded as a deposit contract.

Therefore, it is reasonable to view that the fund contributor, etc., when making a deposit contract under the name of the deposit title holder through the real name verification procedure, separately agreed to make the fund contributor, etc. as the party to the deposit contract entitled to claim the return of deposit under the agreement with the financial institution, regardless of whether the parties have left specific and objective evidence with regard to the separate agreement, such separate agreement itself shall be deemed null and void as it is in violation of Article 3(1) of the Act on Real Name Financial Transactions, which is a mandatory provision. In addition, as long as there is no separate agreement, the existence of such agreement shall not affect the deposit contract between the fund contributor, etc., or the financial institution, which was made on behalf of the deposit title holder or directly attending the real name verification procedure in the name of the deposit title holder and the financial institution, which was made under the name of the deposit title holder, and if the deposit contract cannot be recognized as effective as the deposit account with the party to the deposit title holder, the party entitled to claim the return of deposit between the financial institution and the deposit title holder shall be deemed as the deposit title holder.

However, Article 3(1) of the Act on Real Name Financial Services and Confidentiality of a deposit contract without undergoing a real name verification procedure, if the contributor, etc. enters into a deposit contract in the name of the title-holder under the name of the title-holder of the deposit contract and makes a separate agreement between the financial institution to have the contributor, etc. as a party to the deposit contract, but does not undergo a real name verification procedure on the title-holder of the deposit contract, or if the contract is not entered into with the title-holder and the contributor, it is deemed null and void as a violation of the compulsory provision. In the case of the former, the deposit contract becomes null and void in relation to the title-holder of the deposit, as well as the former, and the latter, the deposit in the name of the title-holder of the deposit is null and void. However, without any exception in all cases, Article 3(1) of the Act on Real Name Financial Services and Guarantee of Secrecy shall be applied as the compulsory provision without undergoing a real name verification procedure, and it is more likely that the deposit contract should be deemed null and void in the name of the Act (see Article 1).

On the other hand, despite the existence of a separate appearance of a deposit contract that meets the requirements required by the Act on Real Name Financial Transactions in the name of the deposit title holder, as in this case, it would be contrary to the intent of the Act on Real Name Financial Transactions to disregard it and recognize a deposit contract with another person other than the person subject to the real name verification procedure as the deposit owner. In such a case, at least, the deposit contract other than the deposit title holder subject to the real name verification procedure by applying the provision of the Act on Real Name Financial Transactions as mandatory provisions shall not be permitted as a valid deposit

C. The Majority Opinion, in light of the need to prevent disputes surrounding the confirmation of a party to a deposit contract and clarify the legal relationship therein in a transparent manner, the said financial transaction, such as a deposit contract made in mass and repetitive form, must be treated as a party to the deposit contract, and the contributor, etc., who is not the title-holder of the deposit contract, shall be recognized as the party to the deposit contract only in extremely exceptional cases where specific and objective evidence exists, to the extent sufficient to reverse the probative value of

However, according to the above criteria presented by the majority opinion, it is doubtful whether the formation, speediness, clarity, and transparency required in financial transactions can be ensured easily. It is questionable whether not only the criteria presented by the majority opinion is abstract, but also it is possible to easily confirm whether financial institutions or third parties, as well as the related parties to the deposit contract meet the requirements.

In addition, one more problem is that if a deposit contract is deemed to have been concluded with a deposit account with a deposit account holder as the deposit account holder, rather than a deposit contract with a deposit account holder as the deposit account holder, according to the criteria required by the majority opinion, the deposit contract in appearance with the deposit account holder as the deposit account holder in principle shall be null and void on the premise that the deposit contract existing in appearance with the deposit account owner is valid, in relation to a third party who has entered into an interest relationship with the deposit account holder, such as seizing the claim for the return of the deposit deposit, etc. on the premise that the deposit account under the deposit account holder is valid, in principle, the agreement with the deposit account holder shall be deemed null and void. However, if the third party acted in good faith in accordance with Article 108(2) of the Civil Act, the third party shall not be allowed to assert the invalidity of the agreement, and if so, the third party was aware of the fact that the deposit account was deposited with funds of the fund contributor, etc., the deposit account holder was deposited with the deposit account holder and the seal contributor, etc.

Ultimately, the legal principles presented by the majority opinion are difficult to achieve the effectiveness of the formation and speediness of financial transactions pursued by the majority opinion, and it seems not to help prevent legal disputes and simply and clearly clarify legal relations.

D. The explicit or implied agreement between the contributor, etc. and the financial institution to vest the right to request the return of deposit under the deposit contract in the name of the deposit title holder should be denied its validity by violating Article 3(1) of the Act on Real Name Financial Transactions, which is a mandatory provision, even if such explicit or implied agreement is valid, and in such a case, the agreement shall be deemed as a party to the deposit contract to which the right to request the return of deposit under the deposit contract belongs. The above opinion shall be modified to the extent inconsistent with the above opinion. Accordingly, the Supreme Court Decision 200Da746475 delivered on May 14, 2007, which held by the majority opinion as to the case where the contributor, etc. did not receive the power of representation from the deposit title holder, or the contributor, etc., who made the contract in the name of the deposit title holder without undergoing the real name verification procedure under the name of the deposit title holder on behalf of the deposit title holder and concluded the deposit contract in the name of the deposit title holder without the real name verification procedure under the name of the deposit title holder.

E. In light of such legal principles and records, even if the non-party to the deposit contract entered into with the non-party savings bank on behalf of the plaintiff, as at the time of original adjudication, through a real name verification procedure in the name of the plaintiff, on behalf of the non-party savings bank, and the non-party to the deposit contract in which the right to claim the deposit under the deposit contract belongs, such separate implied agreement is contrary to Article 3 (1) of the Act on Real Name Financial Transactions, which is a mandatory provision, and thus, such separate implied agreement itself is deemed null and void. As long as the validity of such separate implied agreement is denied, it shall be deemed that the non-party who represented the plaintiff and the non-party savings bank are only effective as expressed in the deposit transaction application, etc. prepared under the real name verification procedure in the name of the plaintiff. Accordingly, the party to the deposit contract to which the right to claim the deposit of the deposit in the deposit account in this case

On the contrary, the implied agreement between the non-party bank and the non-party holding the non-party, who is the title-holder of the deposit account of this case, to be the party to the deposit contract to which the right to claim the return of deposit in the deposit account of this case belongs, was effective. The court below held that the non-party is the party to the deposit contract to which the right to claim the return of deposit in the deposit account of this case belongs, which erred by misapprehending the legal principles on the interpretation and application of Article 3(1) of the Act on Real Name Financial Transactions

For the same reason, I agree with the majority opinion that the judgment of the court below should be reversed, but I agree with the majority opinion as to the reasons for reversal of the judgment of the court below, and express my concurring opinion.

5. Concurrence with the Majority by Justice Cha Han-sung

A. Freedom of contract is the most important means in which private autonomy is realized, and includes freedom of contract conclusion, freedom of choice, freedom of choice of the other party, and freedom of modification or resolution of contract. However, such freedom of contract needs to be restricted in relation to the overall order of the community. Accordingly, Article 23(1) of the Constitution provides that “All citizens’ property rights shall be guaranteed.” Article 23(1) of the Constitution provides that “The contents and limitation of property rights shall be determined by law,” and Article 23(2) provides that “The exercise of property rights shall conform to public welfare,” thereby allowing that the right of contract included in the exercise of property rights can be regulated by law.

The Act on Real Name Financial Transactions and Confidentiality (hereinafter “Act on Real Name Financial Transactions”) is a law enacted for the purpose of realizing economic justice and promoting the sound development of the national economy by conducting financial transactions under real names as stated in Article 1 as well as protecting the confidentiality thereof through normalized financial transactions. It is also important to interpret the provisions of the Act on Real Name Financial Transactions and Confidentiality with the aim of sufficiently respecting the legislative purpose and legislative intent. However, it is also important to interpret that the exercise of people’s property rights is not restricted without any legal basis for public interest beyond the original legislative purpose and legislative intent. Such interpretation is consistent with the provisions of Article 23(1) of the Constitution that declares the principle of restriction on fundamental rights under the Act and accords with the principle of substantial rule of law.

B. Article 3(1) of the Act on the Registration of Real Estate under Actual Titleholder’s Name provides that financial institutions shall conduct financial transactions under the real names of customers, and there is no provision on the validity of financial transactions in violation of the said provision. In the event of a violation of the said provision, Articles 7 and 8 provide that an administrative fine not exceeding five million won shall be imposed on the executive officers and employees of financial institutions and financial institutions. This provision provides that the Act on the Registration of Real Estate under Actual Titleholder’s Name (hereinafter “Real Estate Real Name Act”) aims to prevent anti-social acts, such as speculation, evasion, evasion, and evasion of laws that abuse the real estate registration system under Article 1, and to contribute to the sound development of the national economy by preventing real estate transactions from going against social acts, such as normalization, real estate transactions, and stabilizing real estate prices. Article 3(1) provides that “any person shall not register real rights to real estate in the name of a title trustee pursuant to a title trust agreement,” and Article 4(1) provides that “The title trust agreement shall be invalidated,” Article 5(1)1) through Article 6(2)1).

Since financial transactions, such as deposit transactions, are conducted in large quantities and repeatedly in the daily lives of the people, if the validity of deposit transactions in violation of the Act on Real Name Financial Transactions is uniformly denied, it would significantly affect the daily life and the exercise of property rights by the people. Therefore, if the legislators have the intent to deny the judicial validity of the deposit contract in violation of Article 3(1) of the Act on Real Name Financial Transactions, it is reasonable to deem that the legislators have stipulated a provision to deny the judicial validity as stipulated in Article 4(1) of the Act on Real Estate Transactions, by taking into account the importance and ripple effect thereof. However, the Act on Real Name Financial Transactions does not stipulate a provision to deny the judicial validity of the act in violation of Article 3(1) of the said Act. This well indicates that the legislators did not intend the said provision as a mandatory provision.

C. Meanwhile, the separate opinion that the Act on Real Name Financial Transactions was enacted to regulate a financial transaction without a real name is likely to be used in unlawful and unlawful conduct, such as receipt of political funds, raising of funds, evasion of taxes, concealment of various criminal proceeds, money laundering, etc. However, it is difficult to uniformly conclude a deposit contract without considering the specific and individual motive, circumstance, and purpose of the deposit contract not based on a real name as an act having anti-sociality to the extent that it does not become null and void in itself. Furthermore, it is questionable whether it is possible to view the deposit contract as uniformly deeming it as an anti-social act without considering only the motive, purpose, etc. of the contributor, etc. in determining the anti-social nature of the deposit contract and the degree of awareness or involvement of the financial institution, which is the other party to the contract, without considering the motive, purpose, etc. of the fund contributor, etc. in determining the anti-social nature of the deposit contract. From a comparative perspective, it is difficult to find legislation cases that deny the legal validity of the deposit contract as an anti-social act.

If the Act on Real Name Financial Transactions assumes that the deposit contract with the contributor et al. who did not undergo the real name verification procedure is an act that substantially has anti-sociality, it is reasonable to deem that the Act imposed a strong sanction on not only the officers and employees of the financial institution and the contributor et al., but also the financial institution. However, Article 3(1) of the Act on Real Name Financial Transactions provides only the financial institution as the subject to the real name verification procedure, and does not impose administrative sanctions or criminal punishment on the officers and employees of the financial institution and the financial institution that violated the said provision, and does not impose such administrative sanctions or criminal punishment. This is clearly compared to the Act on Real Estate under Actual Name Financial Transactions, which strongly regulates title trust acts and denies its judicial validity, and imposes criminal punishment on both the title trustor and the title trustee. Considering these circumstances, it is difficult to deem that the legislative purport of the Act on Real Name Financial Transactions is treating deposit contracts in violation of Article 3(1)

Therefore, the interpretation theory that the judicial effect of a deposit contract not based on the real name should be uniformly denied by uniformly concluding it as an anti-social act in the absence of any explicit provision denying the judicial effect of the deposit contract without the real name is beyond the bounds of interpretation theory in light of the purport of Article 23(1) of the Constitution that declares the restriction of fundamental rights by law or the ideology of substantial rule of law, even though it can be considered as a legislative theory.

In addition, the Majority Opinion does not take the position that the judicial effect of a deposit contract without undergoing a real name verification procedure shall be deemed valid at any time. In a case where a deposit contract between a financial institution and a contributor, etc. is concluded for the purpose of concealment and storage of criminal proceeds, etc. or for the provision of a bribe, etc., it is always possible to invalidate the relevant deposit contract by taking account of the motive, purpose, circumstance, and details of such individual deposit contract and the degree of awareness and involvement of the financial institution, etc. It is always possible to invalidate the relevant deposit contract pursuant to Article 103 of the Civil Act. The Majority Opinion merely assumes that a interpretation that uniformly invalidates the relevant deposit contract on the basis of Article 3(1) of the Act on Real Name Financial Transactions cannot be adopted without any legal basis, and that a deposit contract without undergoing a real name verification procedure may be invalidated

D. Ultimately, while interpreting Article 3(1) of the Act on Real Name Financial Transactions as a mandatory provision, the opinion of the Concurring Opinion that uniformly considers a deposit contract in violation of this provision as invalid is that the legislative purpose of Article 1 of the Act on Real Name Financial Transactions is excessively emphasized, and the freedom of contract is excessively restricted beyond the legislative purpose and purport of the Act on Real Name Financial Transactions, and it is inconsistent with the purport of Article 23(1) of the Constitution or the ideology of the substantial rule of law. Therefore, from the standpoint of the Majority Opinion, such interpretation theory cannot be accepted

E. Meanwhile, the Concurring Opinion argues that the agreement should be null and void as long as Article 3(1) of the Act on Real Name Financial Transactions is violated when the contributor et al. agreed to make the contributor et al. as a party to the deposit contract in the name of the title-holder on behalf of the title-holder of the deposit account through the real name verification procedure on behalf of the title-holder of the deposit account. However, if there exists a clear agreement between the contributor et al. and the financial institution to make the contributor et al. as a party to the deposit contract, it is natural interpretation to deem that there was no agreement between the title-holder of the deposit account and the financial institution on the establishment of the deposit account, or that at least there was an agreement between the contributor et al. and the financial institution to deny the effect of the deposit contract between the intent to enter into the deposit contract and the financial institution. As such, it is difficult to find that the former is valid if the latter is denied, in the interpretation and confirmation of the general contracting party.

Therefore, if the contributor et al., made an agreement with a financial institution to clarify the contributor et al. as a party to the deposit contract under the agreement with the financial institution as a party to the deposit contract on behalf of the deposit title-holder, the deposit contract between the contributor et al. and the financial institution may not be effective and void, regardless of whether the deposit contract between the fund contributor et al. violates Article 3(1) of the Act on Real Name Financial Transactions, and thus, if both the deposit title-holder et al. and the financial institution are unable to become a party to the deposit contract, the deposit contract between the deposit title-holder and the financial institution shall not be effective, unless there are special circumstances such as the act of deposit by the fund contributor et al. constitutes illegal consideration, the right of return of unjust enrichment equivalent to the deposit amount shall be acquired from the financial institution. Such interpretation would result in the conclusion that the violation of Article 3(1) of the Act on Real Name Financial Transactions is null and void pursuant to the Concurring Opinion without clear legal basis.

F. The Concurring Opinion criticizes that the criteria for interpretation and confirmation of a party to a deposit contract presented by the Majority Opinion are abstract, and it is difficult to confirm not only the party to a deposit contract, but also whether a financial institution or a third party meet the said criteria, etc., and it is difficult to achieve the effectiveness of the emotional formation and promptness of financial transactions, and it does not help to achieve the purpose of preventing legal disputes and clarifying and clarifying legal relations. Such opinion is questionable as follows: (a) Article 3(1) of the Act on Real Name Financial Transactions is a mandatory provision; and (b) Article 3(1) of the Act on Real Name Financial Transactions is deemed a mandatory provision; and (c) Article 3(1) of the Act on Real Name Financial Transactions is a uniform premise that only such title-holder can be seen as a party to a deposit contract, but only if it is concluded through a real name verification procedure in the name of the party to the deposit contract, it is possible to prevent legal disputes and to clarify legal relations. However, it is also doubtful whether such premise in the Concurring Opinion’

According to the Majority Opinion, in a case where a deposit contract is concluded through a real name verification procedure under the Act on Real Name Financial Transactions and the fact of the contract is clearly indicated in the statement of real name verification, it is clear that a financial institution and a contributor, etc. excludes the right to claim the return of the deposit from the deposit title holder by denying the deposit contract with the fund contributor, etc., and enter into the deposit contract with the fund contributor, etc. to vest in the right to claim the return of the deposit. Such agreement is limited to extremely exceptional cases recognized by specific and objective evidence sufficient to reverse the probative value of the deposit contract, etc. prepared through a real name verification procedure under the Act on Real Name Financial Transactions. Therefore, the fund contributor, etc., other than the deposit title holder, etc., may not be clearly known at the time of the conclusion of the deposit contract, but it is difficult to accept the Majority Opinion’s view that it is difficult to clearly understand the legal relationship as seen above, as seen above, because it is highly clear that the legal relationship between the deposit title holder, the fund contributor, etc. and the fund contributor becomes a party to the deposit contract., and thus, it is difficult to understand.

6. Concurrence with the Majority by Justice Yang Chang-soo

A. The Majority Opinion generally emphasizes the purport of the Act on Real Name Financial Transactions and Confidentiality (hereinafter “Act on Real Name Financial Transactions”) to recognize a contributor, etc., who is not a deposit titleholder, as a party to a deposit contract, as a party to a deposit contract, and justifys it by emphasizing the intention of the Act on Real Name Financial Transactions and Confidentiality (hereinafter “The Act on Real Name Financial Transactions”). I agree with the Majority’s conclusion, I think that the reason for the supplementary opinion can be accessed from the general legal standards on the interpretation of expression of intent

Prior to the discussion, the point of view is that it is not an individual deposit transaction, such as deposit and withdrawal, but a deposit account opening contract, which forms the basis thereof, and that the confirmation of the contracting parties should be distinguished from the mistake of identity of the party who actually was known to the contracting party Gap, and as such, it should be distinguished from the mistake of identity of the party who was not the party A.

B. As stated in the Majority Opinion, the issue of who is the party to a contract is determined by the interpretation of a declaration of intent even in cases where a loan is made in the process of signing the contract. The interpretation of a declaration of intent is generally known as a work with the objective meaning given by the parties to the contract. However, it is an expression likely to mislead the parties. If the discussion is limited to the case of a declaration of intent of the other party, such as the contract in question, it is the work to explore how to reasonably understand the expression from the other party’s standpoint. Even if a declaration of intent is understood as a “definite” to a third party, it should be understood as an “definitely” in the context of the other party’s expression of intent, and such expression should be reasonably interpreted as an “confinitely” in the context of the other party’s expression of intent. For example, the interpretation of a declaration of intent should be reasonably interpreted from the standpoint of the other party’s expression of intent in accordance with the principle of “confinite interpretation” as stated in the Majority Opinion.

C. Whether the party to the deposit contract is the party to the contract is an issue of interpretation of expression of intent, or in other cases, it is apparent that the party itself, which forms the basis for such subjective interpretation, must be expressed by interpretation of expression of intent.

As to this, the trial practice did not mean that the title holder is a party to a contract in which the so-called borrowed name was involved. For example, the Supreme Court Decision 80Da639 Decided July 8, 1980 held that “If a school juristic person borrows money from the defendant because it was a limitation provision under the Private School Act, even if the defendant was aware of such circumstances, it is reasonable to interpret that the above non-party's intent will be borne by him as a principal debtor with respect to the above lending and borrowing of money, and it shall not be deemed that the above non-party's expression of intention is not a true intention.” However, the Supreme Court Decision 94Da5385 Decided October 13, 195 ruled that "if a party to a contract used another person's name without permission, it shall be determined as an act of the person who committed the act or the title holder, and if the other party's intention to use the money is identical, it shall not be determined as an act of the title holder before and after the conclusion of the contract.”

As a matter of course, the standard of contract is applicable to the issue of who is the party to the deposit contract. Accordingly, many precedents have accepted that if there is an agreement between the offender, i.e., the person who intends to make the deposit in the name of the party to the deposit contract and the other party, i.e., the actual contributor, etc., to be the party to the deposit contract only between financial institutions, such as the bank, the actor becomes the owner of the deposit, and that the agreement with such intent can be easily accepted that there is no need to explicitly or implicitly be recognized in accordance with the general principles. The attitude of many decisions that are discarded in the en banc Decision is merely the application of the above interpretation standard.

D. Since the above Supreme Court Decision 94Da55385 Decided the above Supreme Court, the characteristics of the interpretation rules are that above all, in interpreting the declaration of intent on the confirmation of the parties to the contract, the meaning of the "party", which serves as the basis for the interpretation of the declaration of intent on the confirmation of the parties to the contract, is limited to the offender (i.e

However, if the discussion here is limited to the case of the name transfer, not the identity theft, it is extremely doubtful whether a party to the contract should be determined regardless of his/her intention, even though a certain person was aware of the fact that the contract was concluded in his/her name, and whether the party to the contract was determined in question regardless of his/her intention. Unless otherwise stipulated by law, such as Articles 24 and 332(2) of the Commercial Act, the other party’s view is reasonable from the standpoint of the other party, for example, if there is no particular meaning as to who is an ordinary party, such as accommodation contract or real sale, and if it is said that there is no specific meaning as to who is a party to the contract, or in contrast, as in the case of employment, partnership, lease or contract, the party’s personal nature, such as that of the party to the contract, is ordinarily important, and thus, it cannot be easily ruled out from the party to the contract that permits the conclusion of the contract in his/her name as above, as well as where the contract is concluded only under the premise of its nature.

In particular, as pointed out in the Majority Opinion, a financial transaction conducted in large volume and repeatedly, such as a deposit contract, must be handled regularly and promptly by a financial institution. In addition, not only from the standpoint of a financial institution repeatedly performing a large amount of business, such as the return of a deposit with respect to whom the right to claim the return of a deposit is vested, but also from the perspective of the common property of the people, a majority of the people who have interests in, or intend to have, the ownership of the deposit, such as creditors or persons who intend to provide credit with collateral, etc. from the perspective of the common property of the people, should be considered. Moreover, even if it is interpreted that an executive or employee agreed on behalf of a financial institution as a party to the deposit contract on behalf of the said executive or employee as a party to the deposit contract, it violates his/her duty to the financial institution (see Article 8 of the Act on Real Name Financial Transactions). Moreover, the legal doctrine on abuse of the right to claim the return of a deposit, which prevents the legal effect of the said act from being vested in the principal, may not be disregarded.

Therefore, the parties to a deposit contract shall be determined in accordance with their names, and in such a case, a person who applies for the opening of a deposit account in a financial institution shall be deemed to act as his/her agent or private person. Of course, the freedom of formation of legal relations based on the legal act system, which is the basis of our Civil Act, cannot be readily assumed that it can not be easily interpreted as an agreement on the exception in accordance with the various parties’ situation, interests, inclinations, or symbols, etc. by seeking the freedom of formation of legal relations, which is the basis of our Civil Act. In short, it shall be recognized only under extremely strict standards. In short, it is appropriate to the request of “reasonable understanding” from the standpoint of the other party, which

E. In conclusion, the concurring opinion agrees with the majority opinion that recognizes the contributor, etc., who is not the nominal person, as a party to the deposit contract, should be limited to extremely exceptional cases, and the attitude of the previous precedents that differing from this view, within the scope of the previous precedents, should be discarded. However, more critically reviewed the general interpretation rules of the Supreme Court Decisions 94Da55385 as seen earlier and the subsequent precedents, and then applied the results to the contract in consideration of the characteristics of the deposit contract individually. In addition, if the above Supreme Court Decisions 94Da5385 Decided 94Da5385 et al. as mentioned above are maintained, it would cause significant imbalance between the contract and other contracts in relation to the determination of the contracting party in the future.

Chief Justice Lee Young-ran (Presiding Justice)