금융실명제하에서 예금계약의 당사자 확정 방법

This essay primarily discusses the Supreme Court ruling in the case of 2008Da45828 delivered on March 11, 2009 where the court dealt with the issue of how to determine who is the party to the bank account contract to whom the right to claim for the money from the bank account against the bank should be given under the Act of Real Name Financial Transactions and Guarantee of Secrecy(hereafter ‘RNFT’) in a case where a fund provider, as the agent of other person, opened a bank account in the name of that person by depositing some money which turned out to have come from the fund provider's property. Court decisions, prior to the Enactment of RNFT, placed weight on the transactions in reality where the name of bank account-holder had no significant meaning between parties to the bank account contract, and ruled that a fund provider should be treated as the contracting party who had a claim for the money from the account against the bank. As a result, the fund provider usually opened his/her bank accounts with fictitious or borrowed names and exercised his/her right as the account-holder, thereby causing such problem as generating lots of false or borrowed accounts for illegitimate purposes e.g. tax evasion and concealment of slush fund. Decisions, after the Enactment of RNFT, ruled that in principle, the “account holder”, which means the person in whose name, or either or any of the persons in whose names, the account is kept, should be treated as the “party to the bank account contract” (hereinafter “contracting party”), who should have the right to claim for the money from the bank account. However, such decisions allow some exceptions to the principle, and ruled that when there was an express or implied agreement between the fund provider, not the account holder, and the bank to give the fund provider of the bank account the right to claim for the money from the bank account, the bank account agreements could be established validly and could treat a fund provider as the contracting party. Some Supreme Court(SC) decisions, by the way, without considering the legislative intent of RNFT and the intents of the related parties, the contracting party and the bank, have placed too much weight on the factors as follows: the purpose of providing money for bank deposit; the registered name of a legal seal for the bank deposit; and who keeps password or bank deposit certificates, resulting in that the Courts have recognized the establishment of implied bank account contract with borrowed name account holder between fund providers and banks, and considered fund providers as the contracting party. Consequently, the extent to which the Court acknowledged a bank deposit fund provider, who stays behind with their name unrevealed through opening borrowed-name account, as a legitimate contracting party has grown wider and wider. However, such Supreme Court decisions not only dilute the legislative intent of RNFT but also conflict with the rules of construction for the legal conduct from civil cases and a doctrine of probative value of dispositive document, which are considered to be inappropriate. Real name verification procedure is the process in which, pursuant to legislative purpose of the RNFT (sec.1, sec3①), the identity of a party (bank account holder) of bank account contract should be revealed transparently and is registered with the bank. In other words, it is such a procedure that explicitly demonstrates that the right to claim for the money from the bank account should be given to the account holder who passes through real-name acknowledgement process. When a bank account contract is made, the duty of taking the real-name verification procedure is legally mandatory. Also, such duty has been firmly followed by the people in practice of banking transactions and the contracting parties in those transactions have sufficiently acknowledged it. Thus, particularly after the enactment of the RNFT, the account holder under a bank account contract is to be considered to express his/her intent to become the party to the bank account contract. On the other hand, the intent of a financial institution such as a bank in making that contract is to be considered to be a contracting party who acknowledges the contracting party who expresses his/her intent to make that contract through the real-name verification procedure for the purpose of clarifying legal relationship and wants to prevent disputes with respect to the identification of a party to the bank deposit account, regardless of both internal relationships between the fund provider and the bank contracting party. Thus, such a meeting of contractual intents between both parties to the bank account contract should be respected. Therefore, in case where parties go through the real name verification procedure, considering such a meeting of contractual intents between both parties to the bank account contract, it is natural and proper for the court to interpret that the account holder whose name is written on the bank account contract after taking the real-name verification procedure is the contracting party to whom the right to claim for the money from the bank account against the bank should be given. Recognizing the existence of intents different from the interpretation mentioned above is to negate intents explicitly expressed in bank account contracts through the mandatory real-name verification procedure, thereby disapproving dispositive documents with a high level of strong probative value. In order to negate probative value of the document, the proof of counter-evidence with concrete probative value equivalent to “the bank account contract through real-name verification procedure” should be required. Supreme Court ruling in the case of 2008Da45828 suggests above-mentioned reasoning and conclusion, and reversed some of the Court's decisions which maintained different positions. Supreme Court ruling in the case of 2008Da45828T could be deemed to be a case law not only providing an important standard for identifying the contracting party to the bank account contract under the RNFT in the future, but also firmly implementing the RNFT, thereby having a desired impact on the sound development of national economy including financial transaction.