[1] Standard for determining whether a “user’s intentional or gross negligence” under Article 9(2) of the Electronic Financial Transactions Act exists

[2] In a case where Gap used the Internet banking service while making a financial transaction with Eul corporation, etc., which is a financial institution, and Byung used the financial transaction information acquired by Byung through telephone financial fraud to reissue the certificate under Gap's name and received loan service from other financial institutions, the case affirming the judgment below holding that Gap's act of disclosure of financial transaction information constitutes a case where the user's "serious negligence" exists in the occurrence of a financial accident

[1] Whether there exists "a willful or gross negligence" under Article 9 of the Electronic Financial Transactions Act and Article 8 of the Enforcement Decree of the Electronic Financial Transactions Act shall be determined by taking into account the specific circumstances leading up to financial accidents, such as the fabrication of means of access, the details of the relevant methods, such as forgery, the degree of public awareness of the relevant methods, the occupation of financial transaction users and the experience in using financial transactions

[2] In a case where Gap used the Internet banking service while making a financial transaction with Eul, a financial institution, etc. after opening a bank account and making a financial transaction, Byung used the financial transaction information acquired by Byung through telephone financial fraud (so-called scam) to re-issue Gap's authorized certificate and received a loan from other financial institutions, the case affirming the judgment below which held that Gap's disclosure of financial transaction information constitutes "serious negligence" of users due to financial accidents stipulated in the Electronic Financial Transactions Act, in light of all the circumstances, including the fact that Gap provided a third party with all necessary account numbers, passwords, resident registration numbers, security card numbers, and passwords.

[1] Article 9 of the Electronic Financial Transactions Act; Article 8 subparag. 2 of the Enforcement Decree of the Electronic Financial Transactions Act / [2] Article 9 of the Electronic Financial Transactions Act; Article 8 subparag. 2 of the Enforcement Decree

Plaintiff (Attorney Park Jong-hoon et al., Counsel for the plaintiff-appellant)

Nong Bank Co., Ltd. and one other (Law Firm 21st century General Law Office, Attorneys Seo-il et al., Counsel for the defendant-appellant)

Gwangju District Court Decision 2013Na9358 Decided October 18, 2013

All appeals are dismissed. The costs of appeal are assessed against the Plaintiff.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

A. Article 9(1) of the Electronic Financial Transactions Act provides that a financial institution, etc. shall be liable for any damage incurred to a user due to an accident caused by forgery or alteration of the means of access as provided by the Act. Notwithstanding the provisions of paragraph (1), a financial institution, etc. may require the user to bear all or part of the liability for the damage, “where, in the event of an accident, the user’s intention or gross negligence, and the user may bear all or part of the liability,” etc. In addition, Article 8(2) of the Enforcement Decree of the Electronic Financial Transactions Act that provides for the specific contents of “an intention or gross negligence” under Article 9(3) of the said Act provides that “any third party may divulge, disclose, or neglect the means of access without the user’s authority, despite having known or could have easily known that the third party could conduct the electronic financial transaction using the means of access.” In addition, the Plaintiff and the Defendants used the same provisions as the provisions of Article 20 of the said Electronic Financial Transactions Act in the instant financial transaction.

Here, the issue of whether there is "any intention or gross negligence" prescribed in the above statutory provisions or the terms and conditions should be determined by taking into account the specific circumstances in which financial accidents, such as the forgery of means of access, the details of the method of acceptance, such as forgery, the degree of public awareness of the method of receipt, the occupation of financial transaction users and the experience in financial transactions

B. The lower court acknowledged the following facts first of all. The Plaintiff used the Internet banking service while making financial transactions at each of the Defendants’ respective deposit accounts. On March 30, 2012, the Plaintiff, who was named in the name of the Plaintiff, was a prosecutor of the Seoul District Prosecutors’ Office by posting a phone to the Plaintiff and had the Plaintiff enter the Plaintiff’s resident registration number, mobile phone number, credit card number, deposit account number, password, each password, security card number, and password. On the same day, the Plaintiff was issued an authorized certificate under the Plaintiff’s name using the financial transaction information entered by the Plaintiff, and then transferred each of the money to a third party’s account after receiving loans from three financial institutions, such as Hyundai Card Co., Ltd., and then transferred the money to the said account.

Furthermore, in light of the circumstances acknowledged as evidence of its adoption, i.e., (i) the call financial fraud (the so-called scam) was frequently exposed at the time of the instant financial accident, and (ii) the Plaintiff had social experience, such as operating a public book room as 33 years old at the time of the instant financial accident, and has been using Internet banking services for more than one year; (iii) the Plaintiff stated that he was netly informed of the international telephone starting from his name-free person in the course of investigation into the relevant criminal case, and (iv) the Plaintiff provided a third party with all of the numbers, numbers, passwords, resident registration numbers, security card numbers, and passwords necessary for the issuance of an authorized certificate, which is a means of access, and thus, the lower court determined that the Plaintiff’s act of exposing the Plaintiff’s financial transaction information above constitutes the Defendants’ exemption from liability under Article 9(2) and (3) of the Electronic Financial Transactions Act and Article 20 of the Enforcement Decree of the Electronic Financial Transactions Act.

C. Examining the above legal principles in light of the above, the above determination by the court below is just and acceptable. Contrary to the allegations in the grounds of appeal, there were no errors of law by misapprehending the legal principles as to the scope of "serious negligence" or exemption, and thereby affecting the conclusion of the judgment.

2. Regarding ground of appeal No. 2

The Plaintiff asserted that, in the event that an authorized certificate is reissued by the Defendants, the Defendants neglected to notify the users of the certificate despite their duty of care, thereby preventing the Plaintiff from preventing the financial accidents of this case. Therefore, the Defendants asserted that they are liable to compensate for damages sustained by the Plaintiff due to negligence under Article 760(3) of the Civil Act.

Therefore, the court below held that the Defendants cannot be deemed to have a duty of care to notify the Plaintiff by using text messages, etc. in re-issuance of authorized certificates, and rather, the Defendants appear to be a service provided at the request of the user. The Plaintiff did not file an application for security SS ms at the time of applying for the Internet banking service. Even if the Defendants had such duty of care, it cannot be deemed that the financial accidents of this case occurred due to failure to perform such duty.

Examining the records in light of the relevant legal principles, the judgment of the court below is just, and contrary to the allegations in the grounds of appeal, there is no error of law by misapprehending the legal principles on aiding and abetting tort.

3. Conclusion

Therefore, the appeal is dismissed and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ko Young-han (Presiding Justice)