[1] The case holding that the payment of bank deposit due to the withdrawal from the second deposit and the withdrawal from the third deposit due to the third deposit withdrawal made within a short time after the withdrawal from the first deposit passbook was made in the stolen deposit passbook is valid as repayment to the quasi-occupant

[2] In regard to the withdrawal from the second deposit or the third deposit withdrawal made by changing the trading point within a short time after the withdrawal from the stolen deposit passbook, a bank employee bears an occupational duty of care to investigate whether the applicant has the right to receive the deposit in addition to the ordinary investigation such as checking the seal imprint and the password, and the method of determining the withdrawal

[1] The case holding that the payment of the deposit due to the withdrawal of the first deposit account as well as the payment of the deposit pursuant to Articles 2 and 3 shall be valid as repayment to the quasi-Possessor of the claim, in case where the second deposit withdrawal and the third deposit withdrawal were made with the change of the trading point within one hour after the withdrawal of the first deposit account in the stolen deposit passbook did not have any defects in the deposit payment request, such as the first deposit withdrawal, and the real seal impression already reported was used, and the number which requires thorough security is consistent with the passwords, as well as the payment of the deposit pursuant to the first deposit transaction basic terms and conditions and the practices of the financial transaction thereafter.

[2] In regard to the withdrawal from the second deposit or the third deposit withdrawal made within a short time after the withdrawal of the first deposit passbook from the stolen deposit passbook, in order to view that a bank employee bears the duty of care to verify the identity of the applicant in question or to verify his/her intent to receive the deposit account by simply linking the identity of the applicant in addition to the ordinary investigation, such as the comparison of his/her seal imprint and password verification, etc., or linking the contact point of the computerized deposit account holder, special circumstances should be acknowledged that the applicant may not have the right to receive the payment of the deposit. Whether such special circumstances exist are determined by considering the following: (a) ordinary investigation, such as the verification of the seal imprint and the password, etc., which led to the need for smooth handling of a large number of affairs by a financial institution; (b) on the other hand, the interest of the depositors, which is convenient for withdrawal from the deposit; (c) in light of the nature of the password, if a bank accords with the password, it seems difficult to doubt the applicant’s right to receive the deposit; and (d) it appears to require a financial institution to thoroughly manage the financial institution.

[1] Article 470 of the Civil Code / [2] Article 470 of the Civil Code

Plaintiff (Law Firm Law, Attorneys Choi Ho-hoon et al., Counsel for the plaintiff-appellant)

Jeonbuk Bank Co., Ltd. (Attorney Il-il et al., Counsel for defendant-appellee)

Gwangju High Court Decision 2005Na8902 Decided June 14, 2006

The part of the judgment of the court below against the defendant ordering additional payment concerning the primary claim shall be reversed, and that part of the case shall be remanded to the Gwangju High Court.

We examine the grounds of appeal.

1. The facts admitted by the court below after compiling the adopted evidence are as follows.

A. On May 26, 200, the Plaintiff opened a savings account under the Plaintiff’s name (hereinafter “the instant savings account”) at the Defendant bank’s net store (hereinafter “the Plaintiff”) and reported his seal imprint and password, and thereafter, continued deposit transactions using the instant savings account, resulting in the balance of KRW 64,29,179 on February 11, 2005.

B. The Plaintiff stored a deposit passbook (hereinafter “instant passbook”) and seal, etc., necessary for such deposit transactions in his own house located in the B/S No. 1 of the B/S, and three persons, including Nonparty 1, etc. jointly intruded into the Plaintiff’s house and stolen it on February 22, 2005, and then discovered that the password of the instant passbook was the end of the Plaintiff’s house number.

C. At around 12:49 on February 22, 2005, Nonparty 1, etc. found the point of South Korea branch of the Defendant Bank and withdrawn 25 million won in cash from the instant passbook (hereinafter “first deposit withdrawal”) and later moved to the preceding week, and made Nonparty 2, the operator of the instant bank, around 13:48 on February 22, 2005, withdrawal of KRW 20 million in cash from the point of Jeonju (hereinafter “second deposit withdrawal”), and again, made on May 22, 2005, to withdraw KRW 19 million in cash from the route of Jeonju (hereinafter “third deposit withdrawal”).

2. The court below determined as follows: (a) the delivery of money based on the withdrawal from the first deposit account is a repayment to the quasi-Possessor of the claim and the Plaintiff’s claim was extinguished as to the withdrawal amount; (b) the withdrawal from the second deposit account was made at the point of the first deposit account or the point of the first deposit account after about one hour; (c) the withdrawal was made at the point of the second deposit account; (d) the third deposit account was made at the point of the first deposit account without any specific transaction made 40 minutes prior to the second deposit account; (e) the first deposit account was issued at the point of the first deposit account in this case where the first deposit account was issued at the KRW 6,429 million and the first deposit account was issued at the first deposit account’s KRW 20 million and the second and third deposit account was issued at the expiration of 29 million in order of the Plaintiff’s duty of care to verify whether the remaining amount of the deposit is valid; and (e) the Defendant’s duty of care to verify the remaining amount of the deposit account’s account receipt at the second deposit account account.

However, we cannot accept the judgment of the court below on the second deposit withdrawal and the third deposit withdrawal for the following reasons.

According to the records, Article 10 (1) of the Terms and Conditions for Deposit Transactions (Evidence 1) of the Defendant's Basic Terms and Conditions for Deposit Transactions (Evidence 1) provides that "When a customer intends to find a deposit or interest as a passbook, he/she shall enter necessary matters, such as the reported password, and shall submit a written request for payment signed by the customer: Provided, That where the customer directly enters the password at the PIN-Pad period, he/she may omit the entry of the password in the written request for payment." Article 16 (1) provides that "the bank shall be unabundated by closely comparing and comparing with the personal seal affixed on the written request for deposit payment and the personal seal affixed to the seal affixed on the written request for deposit, with the personal seal affixed on the written request for deposit payment and the personal identification number recorded on the written request for deposit payment are the same as the report or registration, the bank shall not be liable for damage to the customer due to forgery, alteration, or other wrongful reporting."

In this case, the second or third deposit withdrawal did not have any defect in the request for deposit withdrawal, such as the first deposit withdrawal, and since the true seal impression already reported has already been used, and since the deposit payment pursuant to the secret number which requires thorough security has been consistent with the contents of the basic deposit transaction terms as seen earlier, barring any special circumstance, the payment of the deposit shall be deemed valid as repayment to the quasi-Possessor of the claim. Therefore, in order to consider that the applicant bears the duty of care to confirm the identity of the applicant or to confirm the Plaintiff’s intent to withdraw the deposit by simply comparing the Plaintiff’s contact number with the third deposit withdrawal, the court below should consider the following special circumstances: (a) it is difficult to find that the court below’s duty to receive payment of the deposit can be acknowledged in a more convenient manner than the first deposit withdrawal in light of the following legal principles: (b) it appears that the court below’s duty to request the applicant to receive payment of the deposit in this case’s case’s case’s deposit withdrawal in a more convenient manner than the first deposit withdrawal.

Nevertheless, the court below held that the case of the second and third deposit withdrawal shall be deemed to exist in the case of the second and third deposit withdrawal. In this regard, the court below erred by misapprehending the legal principles as to the nature of deposit withdrawal transaction or the repayment to quasi-Possessor of the claim, which affected the conclusion of the judgment. The ground of appeal assigning this error is with merit.

3. Therefore, without examining the remaining grounds of appeal, the part of the judgment below against the defendant ordering additional payment of KRW 13,600,000 as to the primary claim and damages for delay thereon is reversed, and this part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Hyun-chul (Presiding Justice)