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KCI우수등재 학술저널

은행의 착오로 인한 자금이체의 효력

대법원 2012.10.25. 선고 2010다47117 판결

  • 3

Over several years, decisions accumulated by Supreme Court s regarding transfer by mistake have established a legal principle that the transferrer shall take disadvantage of the transfer by mistake. The principle looks very unreasonable in that while it may make the transferrer lose tens of millions of Wons with the mistake of the moment, it may make the unfair profit of a third party(payee, receiving bank, the creditor of the recipient) justified. But if it implies that the transferrer himself shall take disadvantage of the transfer by mistake because he has gross negligence not to identify the payee, the principle is unconvincing in terms of specific validity, but theoretically acceptable. Meanwhile, assuming that even money transfer by mistake of bank may establish the payee s deposit credit on the ground of theory of unnecessity in cause relationship , in recent decision the Supreme Court acknowledged the reverse of money transfer by accepting the claims of the bank which made the mistake and it ruled the exemption of the bank from responsibility. The conclusion made the normative evaluation different depending on who is the mistaker, payer or bank. However, it is questionable whether the rule of the court is justified, that the deposit credit which was once established by electronic funds transfer can be extinguished in the case that the bank did not cause mal-operation such as typing mistakes or errors in fulfilling the payment instructions, but it made a mistake in decision whether it should transfer to the recipient. As long as the effect of fund transfer by the mistake of bank is comprehended within the framework of the electronic funds transfer, the normative evaluation regarding the transfer by bank s mistake shall not get basically different from the payer s. Henceforth, the Supreme Court needs to reexamine this issue.

Ⅰ. 사안의 개요

Ⅱ. 문제의 제기

Ⅲ. 본 판결의 분석

Ⅳ. 본 판결의 평가 및 사정범위

Ⅴ. 결론 및 남은 과제

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