금융실명제 하에서 예금채권의 지급과 부당이득 - 대법원 2012. 2. 23. 선고 2011다86720 판결 -

Payment of deposit and unjust enrichment under the real-namefinancial transaction systemShin, Dong-HyeonThis sometimes happens in registered deposits, contributor, depositor(person to make a deposit contract), and registered person for deposit aredifferent each other. This sometimes happened even after the real-namefinancial system began to be applied on August 12, 1993 which aimed tofinancial transaction with real name. As to deposit in other’s name wherecontributor and registered person for deposit etc. are different each other,there was some discussion around issue to settle on the account holder(theparty to a deposit contract) and detailed legal issues based on this. Andattitude of precedent also had changed. This paper intends to examine the decision of the Korean SupremeCourt delivered on February 23, 2012. This decision shows if registeredperson for deposit can have the right of claiming restitution of unjustenrichment against contributor etc., in case a financial organization paysdeposit to contributor(or heir of contributor) under the real-name financialsystem. But the decision lacks explanation about substantial legal groundsfor such conclusion regardless of right or wrong of the conclusion so thatit requires explanation. Accordingly, this study suggests throughinvestigation and analysis in this regards as follows. 1. Settlement on the account holder should be based on theinterpretation of a deposit contract under the real-name financial system. And the internal legal relation between contributor and registered person isnot directly considered for judgement. The internal legal relation has ameaning only when it is included to an agreement made between financialorganization and the person to make a deposit contract. And this shouldbe only available as data with which it is judged if an agreement betweenfinancial organization and the person to make a deposit contract is clearlymade. Accordingly, it can be assessed that account holder is basicallyregistered person under the real-name financial system, account holder inthe 2012 case is also registered person, and related decision is also basedon this. 2. In this case, a financial organization paid sale price of beneficiarycertificate to the defendant who is one of co-inheritors of contributor, notaccount holder. This is evaluated as effective payment to quasi-possessorof credit(art. 470 of the Korean Civil Code)3. Content of legal relation of deposit in other’s name would be decidedthrough analogy with legal principles of nominal trust of contract. Negation of the duty of restitution of unjust enrichment in the relateddecision would be based on art. 472 of the Korean Civil Code, regulationsof commitment, and concept of fairness.