Plaintiff Co., Ltd. (UB)

Defendant

October 10, 2008

1. The defendant's compulsory execution based on the original copy of the decision on performance recommendation in Seoul Northern District Court 2008Gaso70498 against the plaintiff is denied only on the part exceeding KRW 4,209,780.

2. The plaintiff's remaining claims are dismissed.

3. As to the case of application for the suspension of compulsory execution by this Court on June 10, 2008, the decision of the suspension of compulsory execution by this Court on June 10, 2008 shall be authorized only to the portion exceeding 4,209,780 won.

4. Of the litigation costs, 60% is borne by the Plaintiff, and the remainder 40% is borne by the Defendant, respectively.

5. Paragraph 3 can be provisionally executed.

The Seoul Northern District Court 2008Gaso70498 against the defendant's plaintiff is denied compulsory execution based on the original copy of the decision on performance recommendation.

1. Basic facts

A. The Defendant is a deposit holder with a credit card member who entered into a credit card use contract with the Plaintiff bank in which the deposit account is opened in the Plaintiff bank.

B. On October 26, 2005, at around 19:30, the Defendant retired from the place of work located in Seodaemun-gu, Seoul, Seodaemun-gu, Seoul, and drinked to Nonparty 1 at the main store located in the Hyeung-dong and Hyeung-dong, the Defendant 21:50, and her name was the name omitted card (hereinafter “the instant credit card”) issued by the Plaintiff bank, a credit card, a joint deposit withdrawal from the Plaintiff’s bank in the vicinity of the Seongbuk-gu, Seongbuk-gu, Seoul, for drinking to Nonparty 2.

C. When the credit card of the Plaintiff bank withdraws cash through cash services, it was set up for SP messages to be sent by hand. On October 26, 2005, at around 23:00, the Defendant: (a) sought a report on a phone call at around 23:13 on the Plaintiff bank’s night response message at the Plaintiff bank’s automatic response ARS message; (b) Nonparty 2 did not immediately file a report with the Plaintiff bank; and (c) Nonparty 2 did not visit the Plaintiff bank to check the Plaintiff’s resident registration number on October 27, 2005, and confirmed that Nonparty 3 visited Nonparty 3 to contact Nonparty 1, and confirmed the use of the Plaintiff’s temporary withholding receipt as the Plaintiff’s resident registration number.

D. On October 26, 2005, from around 23:13 to 23:20 on October 26, 2005 without any error in the passwords by using the credit card of this case, the person under whose name the credit card of this case deposited KRW 2,00,000,000 as cash services for a total of seven times from the age cash payment period established in Seongbuk-dong, Seoul, Seongbuk-gu, Seoul. Using the credit card of this case, the person withdrawn KRW 5,016,30 in total at the location of the National Bank head Dong-dong, Dongdaemun-gu, Seoul, the sum of KRW 5,016,30 in total eight times at the location of the National Bank head Dong-dong, Dongdaemun-gu, Seoul. Using the △△-dong card of the Defendant possessed with the credit card of this case, the person withdrawn KRW 513,90 in total from the cash payment period installed at the convenience point of 23:25 in Seongbuk-gu, Seongbuk-gu, Seoul.

E. Around 07:00 on October 27, 2005, the Defendant reported that the instant credit card was stolen from the Plaintiff bank.

F. Although the Defendant had contacted the company in charge of cash withdrawal and secured the face pictures of unclaimed persons who had withdrawn cash, the Defendant was entirely unaware of the face.

G. The Defendant used ○○○○○○○ with the password of the instant credit card. However, the said number was generated by using the four-dimensional numbers among the △△-○○-○○-△△△△, which was received by the Defendant at the time of entering the military, and at the time of unlawful use of the instant credit card, the Defendant’s home telephone number was (hereinafter omitted) and the resident registration number was (hereinafter omitted) and the workplace telephone number was (hereinafter omitted).

H. On October 31, 2005, the Defendant paid 2,000,000 won for the use of cash services of the instant credit card and 513,900 won for the use of △△ Credit Card services to each company issuing the credit card, respectively.

I. On March 27, 2008, the Defendant filed a lawsuit against the Plaintiff Bank to seek unjust enrichment (2008 Ghana70498) with the Seoul Northern District Court. On May 1, 2008, the said court decided to recommend performance on October 26, 2005 with respect to KRW 7,016,30, and KRW 5,013,300 among them, for KRW 7,016,30, and KRW 5,000 from October 26, 2005 to the date of delivery of a duplicate of the instant complaint, and KRW 5% per annum from October 31, 2005 to the date of full payment, and KRW 20% per annum from the next day to the date of full payment. However, the said decision on performance recommendation was finalized on May 20, 2008 because the Plaintiff Bank did not file an objection within two weeks.

(j) Changes in the credit card terms and conditions;

(1) The Credit Card Member Agreement amended on February 1, 2002

Article 8 (Use of Deposit Withdrawal Functions)

1. A member may receive cash services under Article 7 using an automatic cash payment machine or withdraw deposits from the account designated by the member.

(5) Where a person withdraws in cash or receives cash services using a payment instrument, all liability for the divulgence of a password shall accrue to the member.

Article 16

(2) If a member who has implemented the procedure under paragraph (1) intends to apply for compensation for the unlawful use of money due to theft or loss, he/she shall file an application on the Internet or in writing, and in such cases, he/she may receive compensation from a credit card company (the time of reporting, in cases of cash withdrawal and transactions using cash services and passwords) for the unlawful use of a third person that has occurred 60 days before the date of receipt of the report on theft or loss, and at the time of applying for compensation, he/she shall pay 20,000 won compensation for each card.

(3) Notwithstanding paragraph (2), a member shall be held fully responsible for any of the following illegal use (excluding domestic occurrence after the time a report on theft or loss is filed):

1. Where a member is unlawfully used due to the intention or negligence in management of the member;

3. Illegal use by divulgence of a password;

(2) The Credit Card Agreement amended on May 12, 2004

Article 6 (Number of Card)

(1) Members shall report the password by the method determined by the bank, and shall not engage in any transaction that requires the password, such as cash services and transactions using an automatic cash payer, before reporting the password.

3. The secret number is leaked to another person from the member, and all of the liability arises from the divulgence of it to the member.

Article 18 (Reporting on Theft or Loss of Cards and Handling Compensation)

(3) A bank shall compensate for all illegal use charges incurred after the reporting date of a member who complies with the procedures referred to in paragraph (1).

1. Where a member is unlawfully used due to the intention or negligence in management of the member;

5. Where it is illegally used due to the divulgence of a secret card number.

(3) The Credit Card Agreement amended on May 27, 2005

Article 5 (Personal Identification Number)

(3) When using a deposit-related transaction through an automatic cash payer, the password of the account shall be used.

④ The secret number is leaked to any other person from the member, and all of the liability arises from the divulgence to the member.

Article 16 (Reporting on Theft and Loss of Cards and Handling of Accidents)

4. The Bank shall compensate for the amount of fraudulent use 60 days before the date of receipt of the report on theft and loss of the member who implemented the procedures under paragraph (1), except as provided for in any of the following subparagraphs:

1. Where a member is unlawfully used due to the intention or negligence in management of the member;

2. Where it is illegally used due to the divulgence of a secret card number;

(4) Credit card holders amended on December 4, 2006

Article 5 (Personal Identification Number)

(4) All the liabilities incurred by the divulgence of a password from a member to another person shall belong to the member, except in cases of a bank's negligence: Provided, That the foregoing shall not apply where an accident related to the credit card transaction in a member store under a separate agreement to use a cash service, card theory, and password is leaked due to an imprue violence or a danger to the life or body of himself/herself or relatives, or is unrelated to the intention or negligence of the member.

Article 16 (Reporting on Theft or Loss of Cards and Handling of Compensation)

4. The Bank shall compensate for the amount of fraudulent use 60 days before the date of receipt of the report on theft and loss of the member who implemented the procedures under paragraph (1), except as provided for in any of the following subparagraphs:

2. Where a member is unlawfully used due to intention or negligence in management of the member;

5. Where it is illegally used due to the divulgence of a secret card number (in compliance with the criteria under Article 5 (4), referring thereto).

(5) Credit card holders amended on April 28, 2008

(A) Standard terms and conditions for personal credit card holders

Article 12 ( Cash Services)

1. A member may receive cash services within the limit of cash services provided by the bank, such as an automatic cash payment machine, telephone, and the Internet, in accordance with the method determined by the bank.

(2) In using the transaction referred to in paragraph (1), an application amount for cash service shall be immediately paid or deposited in the credit card settlement account (or the account in the name of a member designated by a member) of a member of a bank within the fixed date otherwise determined by the bank, only when the password reported by the member of the bank and the password entered at the time of application for cash service are the

Article 20 (Report of Loss and Theft of Cards and Compensation)

(2) If a member who has implemented the procedure under paragraph (1) intends to file an application for compensation for the amount of unlawful use of a card caused by loss or theft, he/she shall file a written application for compensation with the bank in accordance with the prescribed form determined by the bank. In such cases, the member may file an application for compensation with the bank except for each subparagraph of paragraph (3) with respect to the amount of unlawful use of the card by a third party incurred 60 days before the date of receipt of the report on loss or theft (Provided, That the liability for unlawful use of the card by a third party arising from the card transaction that uses passwords, such as the card service, card theory, electronic commerce, etc., as a means of identification, shall be governed by Article 22): Provided, That the fee for compensation treatment of 20

(3) In any of the following cases, a member shall be fully responsible for any illegal use (excluding an occurrence after the time a report on loss or theft is filed):

Article 22 (Responsibility Related to Secret Number)

A bank shall not be liable even if any loss to its members arises due to a theft, loss, or any other accident, if it confirms that the password entered in the course of a transaction using a password, such as cash service, card loan, electronic commerce, etc. and the password reported to the bank are the same as the same, and processes such transaction, such as cash service, card loan, electronic commerce, etc., as stated in the manipulation: Provided, That this shall not apply to cases where it has no intention or negligence on the part of its credit card members, such as a divulgence of password due to an imprue violence

(b) The terms and conditions applicable to the personal member

Article 2 (Use of Cash Card Functions)

(1) If a member applies for the function of a cash card, he/she may use the cash card function in a cash automatic payment, cash automatic entry and withdrawal machine (hereinafter referred to as "ad hoc machine") by designating the account of a national bank (hereinafter referred to as "bank") or an affiliated institution recognized by the bank (limited to the account in which cash card function can be used) as a settlement

(2) In using the cash card function of a member, a bank shall allow a member to make a transaction only if it is deemed that the number he/she has fabricated and the password reported by the member is consistent, and shall not be liable for any transaction which is recognized to coincide with the other member even if any damage has been incurred to the member: Provided, That the same shall not apply

(3) The hours of operation, the limits of withdrawal, and the frequency of continued use of automatic machines shall be determined by banks at the risk of complying with the terms and conditions set by banks.

Article 16 (Time Limit for Application for Compensation for Loss or Theft)

Where a member fails to file an application for compensation without justifiable grounds within one year from the date of the report on loss or theft, all liabilities for the illegal use shall be borne by the member.

[Grounds for recognition] Evidence Nos. 3 through 11, Evidence Nos. 1 and 3, and the purport of the whole pleadings

2. Determination on Plaintiff Bank’s assertion

A. The plaintiff bank's assertion

(1) Since the withdrawal of deposits by using a credit card cannot be used with the original credit card, in principle, it is excluded from the scope of the application of the credit card contract of this case, and the deposit transaction terms and the cash card terms and conditions exist separately. However, even if the credit card contract of this case is applied by negligence of the members, it should be excluded from the scope of the accident compensation in the case of password leakage by negligence of the members. Therefore,

(2) Since the use of cash services by using a credit card constitutes the use of a credit card in its original meaning, the credit card contract of this case is applied, but the bank is exempted from liability, and the bank does not bear an accident compensation liability against the defendant, since it is exempt from liability for personal identification by negligence of the member.

B. Determination

(1) Although the lending function of a credit card cannot be viewed as the original function of the credit card company, unlike the credit card company that operates only the credit card business, where the bank issues the credit card for the convenience of its members, it is physically incorporated into one credit card company with one credit card function and deposit withdrawal function, and it automatically performs the payment of the credit card through deposit withdrawal function by manipulating the credit card payment account issued by the bank to connect it with the bank account opened by the credit card holder for the convenience of its members. Thus, it is necessary to uniformly regulate the lending function of the credit card through the credit card terms and conditions. The cash card function of the bank that can withdraw deposits using the credit card can be deemed as an incidental business to the credit card business (see Supreme Court Decision 97Do2974, Feb. 27, 1998). Thus, the above provision on the deposit withdrawal function should be applied within the scope of the terms and conditions as amended by the bank prior to the withdrawal of the credit card holders, and the above provision on the deposit withdrawal function should be applied within the scope of the deposit withdrawal clause.

According to the provisions of Article 5(4) of the Terms and Conditions of this case, all liability arising from the divulgence of a password from a member to another person shall accrue to the member. According to the provisions of Article 16(4), in the case of unlawful use of the password, the bank operating a credit card business is excluded from compensation. However, the bank concurrently operating a credit card business may secure profits from the use of credit cards and bank accounts by linking its account with the bank account operated by it, and gain profits from financial transactions. In the case of unlawful use of credit cards, the credit card company may reflect losses arising from the unlawful use of credit cards in its fees or annual fees of its member stores and distribute such risks to the majority of credit card holders or credit card holders. On the other hand, the bank may rely only on the possession and password of credit cards, and thus, such possibility may be sufficiently anticipated, and the bank is still liable for the bank's unlawful use of credit cards by a third party regardless of its member's intention to hold the same and shall not be deemed to have been negligent in establishing the terms and conditions related to the act of unlawful use of the plaintiff 2's bank's own account or secret.

Furthermore, as seen above, with respect to whether the defendant had intention or negligence in the divulgence of a password, the passwords required for the withdrawal of the credit card of this case do not have any relation to the telephone numbers or resident registration numbers that the defendant frequently used in the daily life of the defendant, while the defendant was using part of the passwords, there is no evidence to deem that the defendant possessed a military service number at the time of the theft of the credit card of this case, or that the defendant was in possession of the proviso to recognize part of the passwords as the passwords, and there was no error in the entry of the passwords at the time of the entry of the passwords in the course of the withdrawal of deposits and the use of cash services, and the defendant did not know at all, and thus,

Article 16 (3) of the Specialized Credit Financial Business Act, notwithstanding the provisions of paragraph (2), provides that when a credit card company enters into a contract to the effect that it may assume all or part of its liability for the loss or theft of the credit card, the credit card company may be held liable for the loss or theft of the credit card, and therefore, even if the Plaintiff bank does not have specific terms and conditions related thereto, it is necessary to limit the Plaintiff’s liability for the loss incurred by the Defendant from an equitable perspective. Therefore, as to the scope of responsibility for the Plaintiff’s act of withdrawing illegal deposits using the credit card of a person who has failed to receive his name, the Defendant failed to properly manage the credit card of this case under the influence of alcohol and delayed the report, and contributed to the occurrence of the loss or expansion of the loss, it is reasonable to limit the Plaintiff’s liability ratio to 60% in consideration of these circumstances.

(2) Even in the case of the use of cash services using a credit card, the Defendant’s negligence is not recognized as seen in the above (1), so the Plaintiff bank cannot be exempted from the liability for accident compensation to the Defendant. However, as seen in the above (1), it is reasonable to limit the Plaintiff’s liability ratio to 60% with respect to the loss incurred by cash services as seen in

(3) Therefore, the Defendant’s compulsory execution based on the original copy of the decision on performance recommendation for the case claiming unjust enrichment against the Plaintiff by Seoul Northern District Court 2008Gaso70498 is dismissed only on the part exceeding KRW 4,209,780 (=7,016,300 KRW x 60%).

3. Conclusion

If so, the plaintiff's claim is accepted within the above scope of recognition, and the remaining claims are not accepted due to the lack of reasons.

Judges Park Yong-woo