훔친 통장과 인장을 이용한 예금인출의 유효성

Abstract

If a thief withdraws cash from a bank using a stolen bankbook and seal, would the cash withdrawal be valid? In a recent case in which not only the bankbook and the seal but the PIN number was also identical, Supreme Court held that the cash withdrawal is valid as the performance of obligation to quasi-possessor of claim(the Civil Code §470). The Supreme Court’s decision is on the extension of the position of the existing Supreme Court as an interpretation theory of the Civil Code §470. Also if taking into consideration the effect of the Civil Code §470 itself requiring the quick nature of dealings, the decision may be understood as coping with the request of legal security. However, the Court’s decision, ruling that the performance of obligations by bona fides obligators without negligence is valid according to the requirements of the Civil Code § 470, would have a problem with depositor protection because it means that the depositors shall take a risk of the third party’s tort(theft). After examining the justice of the Suprem Court’s decision on the base of this question, this article comes to a conclusion that the grounds suggested by the Court’s decision may not be certainly appropriate. According to the conclusion, this article suggests a new hypothesis. On the assumption that the flow of financial trade transfers from the request of the quick dealing or convenience (dynamic security) to dealing security (static security), the hypothesis suggests that standard for judgement on an obligator’s negligence depends on whether the security is established in the overall phase of dealings. From the above viewpoint, the article shows that the victim’s bank made a negligence by violating the duty of care(duty of explanation) in the phase of setting up PIN number. However, as long as the court’s decision is established, the fundamental solution shall be necessary from the viewpoint of depositors’ protection. The view of Japanese law, which recently established legislation about this point and dependently coped with it in practical affairs, looks to be referred.