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

Nonghyup Bank Co., Ltd and one other (Law Firm 21st century General Law Office, Attorney Kim Jong-tae, Counsel for the defendant-appellant)

October 11, 2013

Gwangju District Court Decision 2012Gadan62740 Decided August 20, 2013

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance court is revoked. The defendant Nonghyup Bank Co., Ltd. (hereinafter "the defendant Nonghyup Bank") shall pay to the plaintiff 12,600,000 won and 13,380,000 won and 20% interest per annum to the day of full payment from the day of delivery of a copy of the complaint of this case to the day of full payment.

1. Basic facts

A. The Plaintiff opened a deposit account (the account number (Account number 1 omitted), Defendant Seocho Agricultural Cooperative's account number (Account number 2 omitted), and hereinafter referred to as the above No.1 Deposit Account (the Account number 2 omitted) with the Defendants, and used Internet banking services while conducting financial transactions.

B. On March 30, 2012, the name-free person belongs to the Plaintiff as the prosecutor of the Seoul District Prosecutors' Office by posting his phone, 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.

C. On March 30, 2012, the Plaintiff used financial transaction information entered into the Plaintiff and obtained an authorized certificate under the Plaintiff’s name. Using such information, the Plaintiff received KRW 1,800,000,000 from Hyundai Card Co., Ltd., and transferred the said money and KRW 12,600,000,000 in the deposit account in the first deposit account in the instant case to a third party’s deposit account. The Plaintiff borrowed KRW 10,00,000 from Hyundai Switzerland 2 Savings Bank and transferred the said money and KRW 13,380,000 in the deposit account in the instant case to a third party’s deposit account (hereinafter “the instant financial accidents”). The Plaintiff transferred KRW 50,00,000 from Hyundai Switzerland 2 Savings Bank and transferred the money to the second deposit account in the instant case, and transferred the money and KRW 12,600,000 in the instant second deposit account in the name of the third party (hereinafter “the instant financial accidents”).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 5, Eul evidence Nos. 1, 5, 6, 7 (including paper numbers), the purport of the whole pleadings

2. Whether liability for damage is granted under the Electronic Financial Transactions Act;

A. Determination on the cause of the claim

An authorized certificate constitutes a “means of access” as provided by Article 9(1) of the Electronic Financial Transactions Act. As seen earlier, the act of an unqualified holder of an authorized certificate by unlawfully using the Plaintiff’s information shall be deemed as also included in the “facing of a means of access” as provided by Article 9(1) of the Electronic Financial Transactions Act. As such, the instant financial accident constitutes an “accident caused by forgery of a means of access” as provided by Article 9(1) of the Electronic Financial Transactions Act.

Therefore, barring special circumstances, the Defendants, a financial institution, are liable to compensate the Plaintiff for damages caused by the instant financial accident pursuant to Article 9(1) of the Electronic Financial Transactions Act.

B. Judgment on the grounds for exemption

1) The defendants' defenses

The defendants asserted that the financial accident of this case occurred due to the plaintiff's gross negligence, so the defendants' liability is exempted pursuant to Article 9 (2) 1 of the Electronic Financial Transactions Act.

2) Relevant statutes

(2) Notwithstanding the provisions of paragraph (1), in cases falling under any of the following subparagraphs, any financial institution or electronic financial business operator may be held liable to indemnify any user for any loss incurred by the user due to an accident that has occurred due to the forgery or alteration of the means of access, or due to an accident that has occurred in the course of concluding the contract or transaction request in the course of electronically transmitting or processing such transaction request.

The scope of intention or gross negligence under Article 8 (Scope of Intention or Gross Negligence) (3) of the Enforcement Decree of the attached Electronic Financial Transactions Act included in the main text shall be as follows:

Article 20 (Liability for Loss and Exemption) (1) of the General Terms and Conditions for Electronic Financial Transactions contained in the main text (Liability for Loss and Liability) ① In cases where the damage to the user was incurred due to an accident caused by the forgery or alteration of the means of access, or by an accident occurred in the course of electronic transmission or processing of a contract or transaction request, the Nonghyup shall compensate for such amount and the lapse of one-year fixed deposit interest rate. ② Notwithstanding the provisions of paragraph (1), the Nonghyup shall not be fully or partially responsible for any damage to the user, even if the damage to the user arises in any of the following cases.

3) Determination

In light of the following circumstances, the financial accidents of this case occurred at the time of the financial accident of this case, i.e., (i) the so-called telephone financial fraud was frequently caused and the social awareness of it was high; (ii) the Plaintiff used the Internet banking system for more than one year; (iii) the Plaintiff stated that it was thought that it was just a timely time with an international telephone call starting from a name-free person to "01" in the course of investigation into the relevant criminal case; and (iv) the Plaintiff knew or could easily be seen as having known that the Plaintiff’s act of disclosure of the means of access was an inevitable account number, password, resident registration number, security card number, and password of the means of access to the electronic financial transaction of this case to a third party without any authority under Article 9(2)1 of the Electronic Financial Transactions Act, in light of the following circumstances: (i) the Plaintiff’s act of disclosure of the means of access to the electronic financial transaction of this case was 33 years old at the time of the financial accident of this case.

3. Whether liability for aiding and abetting wrongful acts is established.

The plaintiff asserts that the plaintiff is liable for damages sustained by the plaintiff due to negligence under Article 760(3) of the Civil Code since the defendants neglected to prevent the financial accident of this case, despite the duty of care to notify the users when an authorized certificate is reissued.

The written evidence Nos. 6, 7, and 8 (including additional numbers) alone cannot be deemed as having a duty of care to notify the Plaintiff in the event of re-issuance of an authorized certificate to the Defendants using text messages, etc. Rather, in full view of the purport of the entire pleadings in the written evidence No. 7, the notice using text messages, etc. appears to be a service provided at the request of the users, and it is recognized that the Plaintiff did not file an application for securityS msms at the time of the application for Internet banking. Even if the Defendants had such duty of care, it is difficult to conclude that the instant financial accident occurred due to

4. Conclusion

Therefore, the plaintiff's claim of this case shall be dismissed as it is without merit, and the judgment of the court of first instance shall be just and it shall be dismissed as it is so decided as per Disposition.

Judges Song-ho (Presiding Judge)