도난통장에 의한 부정한 예금인출과 예금자의 과실 -일본에서의 논의를 중심으로-

Abstract

Bankbook and seal can be used for Fraudulent withdraws of cash from banks by con-artists. Article 470 of Korean Civil Act regulating performance to quasi-possessor is applied to the case of fraudulent bank withdraw by the holder of bankbook and seal when a drawee bank believes the performance is made to authorized transferee exercising the “due care” under the circumstances that satisfy the standard of “good faith” and "without negligence". In this case, risk and liability have to be placed optimally between drawee bank and customer. Japanese court judged the customer's negligence against the loss or misuse the payment devices has a significant effect on the allocation of the liabilities when it is combined with negligence of due care by the draw bank with makes the transaction void in the following cases: the payment over the stolen bankbook and forged payment bill from the bank teller and the cash withdraw from the ATM by the stolen bankbook combined with PIN. Analysing the above Japanese cases addressing the limited application of the provision regulating “performance to quasi-possessor of claim”. Analyzing the above cases in which the payment of the drawee bank became inefficient by the negligence of drawee bank, I will do comparative study on the ways how the customer's negligence was considered to determining the liabilities of each party and the amount of the damages with the perspective of equivalence. Japan perceived fraudulent withdraws of money to be a very real financial treat to depositary banks and established the independent strategy for the prevention of it. This strategy based on the Depositors Protection Act of Japan making the individual bank customers possibly use the bank without concern can be understood to have established the advanced countermeasure independently and can be consulted for the Korean future legislative strategies against current financial scams such as fraudulent withdraw by stolen bankbook and voice phishing.