2009년 은행법 판례회고

Abstract

In the year 2009, a number of important decisions were rendered by Korean Supreme Court. The most significant one is the decision declaring a standard who will be the owner of the account who can claim to the bank. That was a en banc decision splitted in getting the conclusion that the owner in the book is the ownerwho claim it, not the person who actually funded. In the past, even after the Real-name account system was introduced by the enactment of the law, Korean Supreme Court has acknowledged the beneficiary funded owner as the owner of the account who can claim to the bank. Still the majority opinion of the above mentioned Supreme Court decision put an rebuttable presumption to the written owner of the account as a owner. As a result, in theory it is still possible to rebut the presumption by the funded person by evidencing him to be a real owner, even though it may be harder than ever before. As the number of banking transaction are being done through the wire transfer in a electronic way, the possibility to be sent to a wrong, unintended person by mistake also has been increased. Korean Supreme Court as well as Japanese Supreme Court denied an unjust enrichment claim to bank. However some other pending issues are remained such as whether the bank can pro-actively claim its setting-off(Aufrechnung) to the account or whether the receiver’s usage of the money can be penalized on what legal grounds etc. We have to keep an eye on the progress of the case law. KIKO decisions are still going on with big highlight. Debates heated in the course of the litigation with some big name, nobel economic prize winners’ expert witness statements. We do not have any Supreme Court cases up to now, however the Suitability Rule and Duty-to-explain rule will be illustrated and detailed through the cases pending in the court.