은행의 착오로 인한 자금이체의 효력 - 대법원 2012.10.25. 선고 2010다47117 판결-

Over several years, decisions accumulated by Supreme Court's regardingtransfer by mistake have established a legal principle that the transferrershall take disadvantage of the transfer by mistake. The principle looksvery unreasonable in that while it may make the transferrer lose tens ofmillions of Wons with the mistake of the moment, it may make theunfair profit of a third party(payee, receiving bank, the creditor of therecipient) justified. But if it implies that the transferrer himself shall takedisadvantage of the transfer by mistake because he has gross negligencenot to identify the payee, the principle is unconvincing in terms of specificvalidity, but theoretically acceptable. Meanwhile, assuming that evenmoney transfer by mistake of bank may establish the payee's depositcredit on the ground of theory of 'unnecessity in cause relationship', inrecent decision the Supreme Court acknowledged the reverse of moneytransfer by accepting the claims of the bank which made the mistake andit ruled the exemption of the bank from responsibility. The conclusionmade the normative evaluation different depending on who is themistaker, payer or bank. However, it is questionable whether the rule ofthe court is justified, that the deposit credit which was once establishedby electronic funds transfer can be extinguished in the case that the bankdid not cause mal-operation such as typing mistakes or errors in fulfillingthe payment instructions, but it made a mistake in decision whether itshould transfer to the recipient. As long as the effect of fund transfer bythe mistake of bank is comprehended within the framework of theelectronic 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.