전자금융사기로 체결된 계약의 효력과 손해의 분담 —금융회사의 본인 확인절차 및 사기피해의 방지를 위한 노력의무 위반의 법적 효과를 중심으로(대상판결 : 서울중앙지방법원 2023. 4. 11. 선고 2021 가단5243198 판결)

Abstract

Electronic financial transactions are characterized by online and non- face-to-face, and the Electronic Financial Transactions Act and the Electronic Documents Act have been enacted to support electronic financial transactions. With the digital financial transformation that began with the popularization of smartphones, electronic financial transactions are changing the user's transaction method and identity verification method to make it easier and simpler to improve the convenience of consumers. On the other hand, electronic financial fraud schemes using these changing forms of electronic financial transactions are developing day by day. Recently, there have been frequent cases of deceiving electronic finance users to steal their names with personal information obtained and causing great damage to consumers by transferring existing funds as well as new loan transactions. In applying the laws and regulations related to electronic financial transactions, our courts only emphasize the reliability and stability of electronic financial transactions, and pass on the losses to users, contrary to the global legislative trend of financial companies' principled liability for losses. This does not conform to the fundamental legislative intent of the Electronic Financial Transactions Act, and it is an attitude that excessively disregards the duty of care and responsibility of financial companies that build and manage the infrastructure of electronic financial transactions, and it should be considered that it is an unfair structure because the electronic financial transaction contract is a contractual relationship that relies on procedures operated by one party. The issue at issue is whether the contract loan agreement entered into with the insurance company by the fraudster, who used an electronic financial fraud scheme called smishing, is valid. In the course of the review, it is intended to clarify that Article 7 of the Electronic Documents Act cannot be applied to the case of electronic financial fraud and that the legal nature of the insurance contract loan is that it is subject to the fulfillment of the identity verification obligation of the financial company under the monetary consumption loan contract. As a result, it is argued that a contract entered into by an insurance company with a fraudster through electronic financial fraud should be denied contractual law and that the insurance company should be responsible for the damage caused.