무권한 전자지급거래 시 위험분배 원칙 -전자금융거래법 제9조의 비판적 검토-

This study is concerned with the principle of risk allocation of unauthorised electronic payment which is executed by the payor bank without fault of both parties, namely the payor(originator, bank's customer, user in terms of Korean Electronic Financial Transaction Act, hereinafter KEFTA) and the payor bank(originator's bank, financial institution including financial service provider in terms of KEFTA). The important conclusions that may be drawn from the study are summarized below. Article 470 of Korean Civil Code(hereinafter KCC) which provides that payment made in good faith to one who was in possession of the claim is valid, although the possessor was not real possessor of the claim, is not applicable to allocate the risk of unauthorised electronic payment to the payor. For applying Article 470 KCC it is conditional that the claim be arisen out of the real possessor and stay valid. Moreover Article 470 KCC like Article 1240 of the French Civil Code as its model is only applicable to solve a problem about the identity of a real creditor. Besides under reasonable interpretation of Article 470 KCC it is additionally required that good faith of the payor bank about the identity of quasi-creditor as that of the real creditor be relied on negligent conducts of the real creditor. Futhermore it can not be also held that the payor bank is free from the risk of the unauthorised payment due to the Article 688 (3) KCC, according to which the payor bank as mandatary obtains a claim of damages against the mandator which he has suffered in the ordinary course of carrying out the mandate. But this Article is applicable only if the mandate is valid, but irrespective of both remuneration for the service of the mandatary and negligence of the mandator. Article 9 KEFTA allocates reasonably the risk of unauthorised electronic payment between the payor and his bank to the latter. From a viewpoint of consumer protection as legal policy Article 9 KEFTA is acceptable because a without fault of both parties arisen risk(loss) should be imposed upon a party more able to bear the risk and more easily to insure himself against the risk. This party is the payor bank, who in result should pay business cost in order for providing his financial service in the market. On the other hand Article 9 KEFTA corresponds to the latest international legislative trend and practice which limit the liability of the payor like 50 dollar rule of electronic fund transfer act of the U.S. and 10% rule of the bank general terms and conditions of germany. But Article 9 KEFTA doesn't comply with the principle of liability on the base of negligence in korean civil law system in point of waiving liability of the payor in the case of his simple negligence with regard to unauthorised electronic payment. It can not also overcome moral hazard of the simply negligent payor, and can not give the payor any incentive to take precaution against unauthorised payment. It is also excessive legislation to prescribe in the executive order for KEFTA enumeratively mode of willful conduct and gross negligence, which are very various and should be object of judicial test, so that it could result in contradicting to Korean Constitution. Under Article 9 (2) (1) KEFTA Financial institutes are not permitted to contract out their liability in case of unauthorised payment due to simple negligence of the payor as consumer. Financial institutes can not also disclaim their duty to act in good faith and excercise ordinary care and their burden of proof of the payor's wilful misconduct or gross negligence regarding the unauthorised electronic payment. This Article is a mandatory rule for the protection of consumer which financial institutes are not free to vary by agreement. Lastly, to make KEFTA more completely besides the case of the theft and loss of the means of access the payor should also promptly notify his bank if he learns of their forgery and alteration. Like notice of theft and alteration the payor should be also free from the loss arisen after notice.