은행 근저당권설정비의 부담주체에 관한 연구- 법리적 측면과 부당이득반환청구 소송을 중심으로 -

Abstract

The class action by consumers that requests commercial banks to return the costs of setting collateral security has captured the public’s attention, as the lawsuit represents the biggest class action suit ever. Notwithstanding the public’s interest in this case, it is not easy to look at the true nature of this lawsuit since the credibility of the bank industry in general is at question and the public opinion is hostile to the bank industry. In this paper, the authors will examine the legal issues of this case through various perspectives. First of all, the authors will examine the previous practice and laws that decided the bearer of the cost of setting collateral security in bank mortgages when there is no special agreement between the borrower and the bank on this matter. Then legislations and practices of other countries with regard to this matter will be studied in comparison with those of Korea’s. And the authors will study the significance of General Terms and Conditions for Credit Transactions, which applies to this case, and the validity of unfair clauses in contracts between consumers and banks under the previous practice. The authors will then forecast how this class action will proceed, focusing on whether or not the current case constitutes "unjust enrichment" on which the current class action is based. Especially with regard to whether the previous contracts between consumers and banks are invalid and whether commercial banks have enjoyed unjust enrichments from the previous practice, the authors will interpret the nature of the expense related to setting collateral security as an expense of performance and as an expenses of contract and will apply articles 473 and 566 of the Korean Civil Code respectively. And based on the Benefit Principle confirmed by the Court, the authors will decide who should bear the expenses related to setting collateral security. Furthermore, the authors will also examine whether or not the consumers have actually suffered damages due to the previous practice and will forecast the result of the current class action. Finally, the authors will suggest substitutional measures that how appropriate contracts between banks and consumers can be made after July 2012, since when mortgage loans secured by collateral will be made according to the revised General Terms and Conditions for Credit Transactions. The paper will then conclude by suggesting the alternative methods that banks can propose and the ways how the bank industry, with assistance from the Financial Services Commission, can regain the credibility from the Korean people.