[1] The requirements to be effective as a repayment to a quasi-Possessor of the claim under Article 470 of the Civil Code

[2] In a case where the thief who stolen the Plaintiff’s deposit passbook, seal, etc., withdraws KRW 25 million in cash, cash amounting to KRW 20 million, cash amounting to KRW 20 million, cash amounting to KRW 19 million in sequence from three points of the Defendant bank for about one hour and thirty minutes, the case holding that the first payment against the thief was valid as repayment to the quasi-Possessor of the claim, but the second and third payment cannot be deemed valid as repayment to the quasi-Possessor of the claim

[3] In a case where it is recognized that a bank employee was negligent in paying deposits to a thief of a deposit passbook, etc. and the validity as repayment to a quasi-Possessor of a claim is denied, whether the bank can claim the exemption of a deposit liability based on the terms and conditions of exemption (negative)

[4] In a case where a bank employee was found to have been negligent in paying deposits to a thief of a deposit passbook and the validity of payment as repayment to a quasi-Possessor of a claim was denied, the case holding that the account holder is jointly and severally liable with the thief and jointly liable for the damage suffered by the bank due to the withdrawal of an illegal deposit, in the event that the bank employee neglected

[1] In order to be effective for repayment to quasi-Possessors of claims under Article 470 of the Civil Code, the executor of the claim must have external appearance to believe that he/she has a legitimate authority to exercise the claim in light of the general transactional concept, and the person who performed the claim should not be negligent in believing that he/she did not have been negligent.

[2] In a case where the thief who stolen the Plaintiff’s deposit passbook, seal, etc., withdraws KRW 25 million in cash, cash amounting to KRW 20 million, cash amounting to KRW 20 million, cash amounting to KRW 19 million in sequence from three points of the Defendant bank for about one hour and thirty minutes, the case holding that the first payment against the thief was valid as repayment to the quasi-Possessor of the claim, but the second and third payment cannot be deemed valid as repayment to the quasi-Possessor of the claim

[3] The terms and conditions of a bank's exemption pursuant to the basic terms and conditions of deposit transaction do not purport to allow exemption, even if the payment is made in good faith, in cases where the purpose of the exemption is replaced with seal impression, etc. with due care, and it is confirmed that the deposit is made to a person who does not have the authority to receive payment, but it is not the case where the bank knew or could know the forgery, alteration, or misappropriation of the seal impression or signature of the customer," and on the other hand, as stated in the proviso above, it is not applicable to "if the bank knew or could know the forgery, alteration, or misappropriation of the seal impression or signature of the customer," and it is reasonable to view that the above exemption clause does not purport to reduce the requirements of Article 470 of the Civil Act, which provides for the repayment to quasi-Possessors of the claim, and therefore, as long as the validity of the exemption clause is denied as a repayment to quasi-Possessors of the claim, the bank as a bank may not claim exemption from its obligation

[4] In a case where a bank employee was found to have been negligent in paying deposits to a thief of a deposit passbook and the validity as repayment to a quasi-Possessor of a claim was denied, the case holding that the account holder who neglected management of the deposit passbook, personal identification number, etc. is jointly and severally liable with the thief and jointly liable for the damage suffered by the bank due to the withdrawal of illegal deposits

[1] Article 470 of the Civil Act / [2] Article 470 of the Civil Act / [3] Article 470 of the Civil Act / [4] Articles 396, 760, and 763 of the Civil Act

[1] Supreme Court Decision 2004Da5389 decided Apr. 23, 2004 (Gong2004Sang, 870)

Plaintiff (Law Firm Han, Attorneys Noh Young-dae et al., Counsel for the plaintiff-appellant)

Defendant corporation

Jeonju District Court Decision 2005Kadan9502 Decided September 23, 2005

May 17, 2006

1. Of the judgment of the court of first instance, the part against the plaintiff falling under the following order for payment shall be revoked. The defendant shall pay to the plaintiff 13,600,000 won with 5% per annum from April 15, 2005 to June 14, 2006 and 20% per annum from the next day to the full payment date.

2. The plaintiff's remaining appeal and the conjunctive claim added in the trial are dismissed, respectively.

3. The total cost of a lawsuit shall be divided into two parts, one part, and the other part shall be borne by the plaintiff, respectively.

4. The monetary payment portion under paragraph (1) may be provisionally executed.

1. Purport of claim

In the first place, the defendant shall pay to the plaintiff the amount of 64,299,179 won and 20% interest per annum from the day following the day on which the copy of the complaint of this case was served to the day of full payment, and the defendant shall pay to the plaintiff the amount of 64,00,000 won and 20% interest per annum from the day following the day on which the copy of the complaint of this case was served to the day of full payment (the plaintiff added the conjunctive claim at the trial).

2. Purport of appeal

The part against the plaintiff among the judgment of the court of first instance is revoked, and the defendant shall pay to the plaintiff 64,000,000 won with 20% interest per annum from the day following the delivery of a copy of the complaint of this case to the day of full payment.

1. Basic facts

The following facts are not disputed between the parties, or may be acknowledged by taking into account the following facts, Gap evidence 1, Eul evidence 6 through 8, Eul evidence 2, 3, Eul evidence 9-1, 2, and 3, non-party 1's testimony and the whole purport of oral argument.

A. On May 26, 200, the Plaintiff reported a seal imprint and password in opening a savings account (the account number omitted) in the Plaintiff’s name at the Defendant bank’s net store (the account number omitted), and subsequently, continued deposit transactions using the instant savings account, which led to KRW 64,29,179 in 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/Eup net book of the B/Eup. Nonparty 2 and other three persons jointly intruded into the said house and stolen it on February 22, 2005, and then identified that the Plaintiff’s password was the end of the Plaintiff’s home phone number;

(1) On the same day, at around 12:49, Nonparty 2 entered the account number and the Plaintiff’s name in the comprehensive slips kept at Defendant Bank Southern Branch, and affixed KRW 25 million in the amount of search, and affixed the Plaintiff’s seal already stolen to Nonparty 3, a counter employee of the above branch, and presented the instant passbook along with the comprehensive slips in the Plaintiff’s name forged. The above Nonparty 3 did not find any doubt that the seals affixed to the above comprehensive slips and the reported seal affixed to the above comprehensive slips are consistent with each other, without confirming any specific doubt, and then, Nonparty 2 confirmed the receipt of cash and delivered KRW 25 million in cash to the above Nonparty 2 (PIN-pad).

(2) The above non-party 2, etc. additionally forged 20 million won and 19 million won each of the above methods using the paper for the comprehensive slips held at the above Southern Branch and asked the non-party 4, who is the business owner of the above-mentioned multiple bank, to return the amount to be found as above, to the non-party 2,00,000 won, and to withdraw the deposit by presenting the above comprehensive slips and passbook to the counter employees under the name of the above branch at the above 13:48 on the same day, the above general slips and passbook were presented to the non-party 4, who is the business owner of the above multi-party bank located near the defendant bank's Jeonnam Branch (hereinafter referred to as "the non-party 2,00,000 won"), and then withdrawn the cash 2,00 million won from the employee (hereinafter referred to as "the above comprehensive slips").

(3) The above non-party 2, etc. again requested the defendant bank to withdraw the deposit at the time of issuing the comprehensive slips and passbook in which the amount of money to be found in the above method was indicated as KRW 19 million to females in the name of the defendant bank, and the above non-party 2, etc., presented the comprehensive slips and passbook to the counter employees in the name of the branch at the above 14:19 on the same day, the above non-party 2, etc. presented the comprehensive slips and passbook to the above employees in the counter employees in the name of the branch at the above 14:19 on the same day, and withdrawn them (hereinafter referred to as "third-party deposit withdrawal").

C. On February 23, 2005, the Plaintiff discovered the theft at around 11:10, and immediately reported the accident to the Defendant, but it had already withdrawn a total of KRW 64 million (25 million + KRW 20 million + KRW 19 million) from the instant deposit account.

D. The Defendant’s basic terms and conditions of deposit transaction applicable to the deposit transaction of this case include the Defendant’s exemption clause stating that “the Bank shall not be exactly compared and compared with the seal imprint (or signature seal imprint) affixed to a written request for deposit payment, securities or report and the personal identification number recorded in the written request for deposit payment, etc., or the personal identification number recorded in the PIN-Pad are the same as the report or registration, and thus, if the bank has paid the deposit or carried out the business requested by other transaction parties, it shall not be liable for any damage to the transaction due to forgery, alteration, or fraudulent use of the seal imprint or signature, or other report (Article 16(1)). However, the same shall not apply where the bank has known or could have known of the forgery, alteration, or fraudulent use of the seal imprint or signature of the transaction parties (Article 16(1)). Meanwhile, the interest rate of the deposit is less than 5% per annum under the Civil Act since the bank account of this case was established.

E. From January 1, 2004 to February 22, 2005, deposit transactions through the instant deposit account were made once a month less than once, and more than 10 times a month. However, most of the transactions were made at the said net point, while only the small amount of 100,000 won was made at a different point.

2. The parties' assertion

A. The plaintiff's assertion

The plaintiff is primarily liable to return the deposit amount of KRW 64,299,179 deposited by the plaintiff to the plaintiff from February 11, 2005 to the deposit account of this case. The defendant asserts that the employees belonging to the defendant, who violated the duty of due care as a good manager to confirm the identity of the deposit owner, thereby paying the deposit amount of KRW 64,00,000 to the above non-party 2 et al., thereby causing losses to the plaintiff. Thus, the defendant is liable to compensate the plaintiff for the above amount as the employer.

B. Defendant’s assertion

On February 22, 2005, the defendant paid 64 million won out of the plaintiff's deposit amount of 64,299,179 won to the person who applied for the withdrawal of deposit without any negligence by carrying the plaintiff's passbook and seal. This is a repayment to the quasi-Possessor of the claim under Article 470 of the Civil Code, and the above deposit payment is valid, as well as the above 1-D of the above 1-4 million won since it falls under the reasons for exemption stipulated under the above 1-D clause, the defendant cannot respond to the plaintiff's claim for the return of deposit amount of 64 million won. Second, the plaintiff kept the passbook and seal of this case together with the above non-party 2 et al., and neglected his duty to pay attention not to know the password registered at the time of opening the above passbook, so the above password was easily known to the above non-party 2 et al. by negligence, and the defendant paid the above deposit claim of this case to the above non-party 2 et al.

3. Judgment by issue

A. Determination on the plaintiff's claim relating to the withdrawal from the first deposit account

(1) Whether performance to quasi-Possessors of the claim is valid

In order to be effective for repayment to quasi-Possessors of claims under Article 470 of the Civil Act, the executor of the claim must have external appearance to believe that he/she has a legitimate authority to exercise the claim in light of the general transactional norms from the standpoint of the person who performed the claim, and there was no negligence on the part of the person who performed the claim (see Supreme Court Decision 74Da2083, May 27, 1975, etc.).

On the other hand, the above non-party 2 was holding the passbook of this case at the time of withdrawal from the first deposit account as acknowledged above, and there was no defect in the entry on the comprehensive deposit sheet and the true seal impression already reported was affixed thereto. In particular, the above non-party 2 was required to thoroughly keep the secret number, and the above non-party 2 was identical to the above reported. In withdrawing the deposit from the deposit account of this case, the plaintiff himself was not required to be present at the counter or the procedure of identification was not required, and there was no special circumstance to suspect that he did not have the right to receive the repayment in the dialogue between the above non-party 2's Dong and the counter employees. Even if the first deposit account was held at a relatively large amount, the plaintiff's request to withdraw the deposit account of this case was made at the expense of the non-party 2's general staff member's own view that the above non-party 1 did not have the right to receive the repayment from the counter.

(2) Conclusion

Therefore, the plaintiff's primary claim on the return of deposit amounting to KRW 25 million in relation to the withdrawal from the first deposit is without merit, and the plaintiff's primary claim on this part is without merit, which is premised on the defendant's breach of duty of care as a manager in relation to the deposit management affairs.

B. Determination as to the plaintiff's claim relating to withdrawals Nos. 2 and 3

(1) Whether performance to quasi-Possessors of the claim is valid

In full view of the statements No. 9-1, 2, and 3 as well as the testimony and the purport of the whole pleadings of the above witnesses, the defendant bank's internal business process guidelines provide that the employees of the counter to the business shall carry out their duties with the approval of the vice head of the bank in case of deposit transactions exceeding KRW 10,000 per case, and the employees of the counter to the business after the approval of the vice head of the bank in the second and third deposit transactions are doubtful as to whether the employees of the counter to the business have applied for payment pursuant to the intention of the deposit principle. The defendant bank established an internal computer network capable of verifying the intention of the deposit principle through computerized data immediately, and the deposit transactions conducted through the bank account of this case cannot be seen as being automatically carried out on the screen that all of the previous transactions were conducted by the counter to the 20-party bank prior to the issuance of the deposit account after the expiration of the 10-party deposit account. Such facts are acknowledged as above.

(2) Whether the exemption clause is applied

Furthermore, with respect to the defendant's assertion of the exemption clause against the withdrawal of deposit deposit deposit deposit deposit deposit deposit deposit deposit deposit deposit deposit deposit deposit deposit deposit deposit account, the above exemption clause is exempt from the payment in good faith even if the deposit is paid to a non-exclusive owner, with due care, and if the defendant's purpose of the exemption clause is verified, it is not applicable to "if the defendant bank knew or could know the forgery, alteration, or misappropriation of the client's seal impression or signature" as stated in the proviso above. Thus, even in the case where it is evident that there is no right to receive the payment, the exemption clause does not purport to allow the exemption only through the process of verifying the seal imprint and password, etc., which provides for the payment to quasi-Possessor of the claim, and therefore, it is reasonable to deem that the above exemption clause does not purport to reduce the requirements of Article 470 of the Civil Act which provides for the payment to quasi-Possessor of the claim, as seen above, so long as it denies the validity of the exemption clause as a repayment to quasi-Possessor of the claim.

(3) Conclusion

Therefore, the defendant is obligated to pay to the plaintiff the remaining amount of KRW 39,229,179 (64,29,179 - 25,000,000) and the interest or statutory delay damages on the deposit of this case, except the amount of KRW 25,00,00,000, which was already withdrawn from the first deposit of this case. The plaintiff's primary claim is justified within this scope, and there is no need to further determine the conjunctive claim.

C. Judgment on the defendant's argument of offset

(1) Joint tort establishment and damage claim

The plaintiff kept the passbook of this case together with the seal of the plaintiff, and lost it to the above non-party 2, etc., and had the above non-party 2, etc. easily known the plaintiff's telephone number and withdraw the deposit of this case. The defendant bank suffered damages equivalent to KRW 39 million due to the withdrawal from the deposit account Nos. 2 and 3,00,000. This constitutes a joint tort against the defendant bank with the objective commonness of the plaintiff's negligence which neglected the management of his deposit passbook, seal reduction and password, and stolen it, and used the above non-party 2's fraudulent act for the unfair withdrawal from the deposit account. Therefore, the plaintiff is jointly and severally liable with the above non-party 2, etc. for the defendant's damage caused by the withdrawal from the illegal deposit of this case. In this case, when the court offsets the defendant's negligence on the part of the defendant who is the victim, it should not be individually assessed as the negligence against each joint tortfeasor, and it should be assessed as a whole with the ratio of negligence as to all of this case (see Supreme Court Decision 2009Da9098, Nov.

(2) Scope of offset

Furthermore, according to the above facts, the defendant's liability for damages against the plaintiff is limited to the amount of 14,00,000 won (20,000 x 70/100) against the defendant, since it is reasonable to view that the defendant's liability for damages against the plaintiff is limited to the amount of 70:30,000 won as to the withdrawal of the second deposit (20,000 x 70/100). The defendant's liability for damages against the defendant is limited to the amount of 60:40,000 won (19,00,000 x 60/100 x 60/100). The defendant's liability for damages against the defendant is limited to the amount of 11,40,000 won (19,000 x 60/100) to be refunded to the plaintiff. If the defendant offsets the amount of 39,299,179,000 won against the above amount of deposit.

4. Conclusion

Therefore, the defendant is obligated to pay to the plaintiff 13,89,179 won and damages for delay at each rate of 20% per annum as stipulated by the Special Act on the Promotion, etc. of Legal Proceedings until the date of full payment for KRW 29,179, which is from April 15, 2005 on the day following the day when the copy of the complaint was served as requested by the plaintiff as requested by the plaintiff, with respect to KRW 13,60,000, which is not an issue of deposit withdrawal from April 15, 2005, and KRW 13,600 until the date of full payment for KRW 29,179.

Therefore, the plaintiff's primary claim shall be accepted within the scope of the above recognition, and the part concerning the withdrawal from the first deposit among the conjunctive claims added in the remaining main claim and the trial court shall be dismissed as it is without merit. Since the judgment of the court of first instance is unfair with some different conclusions, it is so unfair as to accept part of the plaintiff's appeal, and it is so decided as per Disposition.

Judges Yan Jung-hun (Presiding Judge)