착오송금 관련 판례 법리의 문제점과 송금의뢰인 보호 방안

Abstract

Despite extensive discussions in previous studies, issues related to mistaken transfers remain unresolved. Although the Scheme to Support the Recovery of Misdirected Money Transfers was introduced in July 2021 through the revision of the Depositor Protection Act, this scheme faces legal limitations when the recipient is insolvent, as it is based on the purchase of the right to claim unjust enrichment against the recipient. While hundreds of thousands of mistaken transfers still occur, the number of remitters who are protected through this scheme remains limited. Supreme Court decisions have traditionally placed the burden of the recipient's insolvency entirely on the remitter, inadvertently allowing recipient banks or creditors to benefit from remitters' losses. Although the Supreme Court has invoked the abuse of the right of set-off doctrine to mitigate these concerns, its limitations are stark in scenarios involving overdraft accounts or accounts seized by third parties. Attempts to rectify these judicial shortcomings through various legal alternatives have not led to meaningful changes in the Supreme Court's decisions or broader systemic improvements. By reevaluating the framework of judicial decisions on mistaken transfers, this study assesses their efficacy and scrutinizes the issues with previously suggested legal alternatives. It proposes robust protection measures for remitters, including amendments to the general terms and conditions for deposit transactions to unambiguously include the right to reject incorrect transactions, and the recognition of express trusts, established through the interpretation of legal actions, when recipients admit to receiving funds erroneously. Furthermore, the study suggests a mechanism for remitters to claim the equivalent of the mistakenly transferred funds from the recipient bank by subrogating the recipient's rights, presenting it as a potential solution that could be utilized in both theory and practice, with the possibility of being accepted by the courts. Additionally, the study calls for refining the process through which remitters can request the return of mistakenly transferred funds, streamlining recovery efforts. It also highlights the importance of introducing specific penalties for falsely requesting the return of mistaken transfers from financial institutions within the Electronic Financial Transactions Act, aiming to deter misuse and maintain the integrity of financial transactions. By fostering ongoing dialogue and analysis, this study seeks to address the current challenges in judicial decisions regarding mistaken transfers, advocating for significant legal and procedural improvements that better protect remitters in such scenarios.