전자금융거래법 제9조에 따른 금융기관등의 책임－하급심 판결을 중심으로－

Approximately 8 years have now passed since the form of electronic financial transaction fraud known as “voice phishing” came to the fore as a significant problem in Korea. Reports indicate that the cumulative value of harm caused by such electronic financial transaction fraud during this period comes to approximately KRW 400,000,000,000. Financial institutions have been investing heavily in the establishment of computer and security systems designed to combat this problem, but the extent of electronic financial transaction fraud remains undiminished, as increasingly devious phishing techniques continue to evolve. Given the difficulties associated with making criminal arrests of perpetrators in cases involving electronic financial transaction fraud, instances of victims seeking compensatory damages, based on the provisions of Article 9 of the Electronic Financial Transaction Act (“EFTA”) are on the rise. Thus far there has been no direct ruling by the Supreme Court concerning the liability of financial institutions in this regard, but the number of lower court rulings on such issues has been steadily accumulating. The EFTA was partially amended on May 22, 2013 and the amendment became effective as of November 23, 2013. Prior to amendment, the EFTA provided, in Article 9, Paragraph 1, that: “financial institutions or other companies engaging in electronic financial business shall be liable for providing compensation for losses incurred by users due to incidents [of fraud] involving counterfeit/falsified means of access, or incidents involving errors in the handling of electronic transmission of instructions or execution of contracts.” This provision of the EFTA has proven to be problematical, however, as a result of leaving the door open to interpretations asserting that it does not include within its scope losses arising due to various forms of electronic financial transaction fraud such as phishing, pharming, hacking of signature verification hacking, memory hacking, etc. The above-mentioned amendment has therefore added the following language to Article 9, Paragraph 1 of the EFTA: “any incident [of harm or loss] arising due to the use of the means of access acquired through deception or other improper means and unauthorized accessing of electronic devices or telecommunications networks for electronic financial transactions.” As a result of this amendment, the scope of compensatory liability borne by financial institutions has been expanded. It has therefore become necessary to focus additional attention and discussion upon the ramifications of such expanded scope of liability. The purpose of this paper is to propose standards, primarily derived from an examination of available lower-court rulings concerning financial institution liability in relation to types of electronic financial transaction fraud, which will serve, for the time being, as a reasonably clear point of reference with regard to the liability of financial institutions under Article 9 of the EFTA. It is hoped that this paper will also provide an impetus for promoting more active general discussions of financial institution liability in this area.