52.14.224.197
52.14.224.197
close menu
위조수표에 대해 선의로 지급한 지급은행의 책임 -자금관계의 위임관계적 성질에서 재조명-
The Liability of Drawee Bank Who Paid the Forged Check in Good Faith
정경영 ( Gyung Young Jung )
금융법연구 2권 2호 83-115(33pages)
UCI I410-ECN-0102-2012-320-001815092

To draw a check, drawer should open the check account and make contracts with bank previously which enables the customer to draw a check. And a check shall be drawn on a bank holding funds at the disposal of the drawer at the time of the presentment thereof and in conformity with an agreement, express or implied, whereby the drawer is entitled to dispose of those funds by check.(Check Act Article 3) Where the drawn check has such requirements and drawer`s genuine signature, the drawee bank can pay the check at the time of the presentment thereof and collect the amount from drawer`s account. May the drawee bank escape liability for payment of the amount thus paid by it on such check where the drawee bank is misled or induced to pay a check upon which the depositor`s signature has been forged? Payment by a bank of a forged check may be justified or excused on principles of estoppel or on the basis of negligence or misleading conduct by the depositor which directly caused the bank to pay the instrument. And under the Uniform Commercial Code, a person whose failure to exercise ordinary care substantially contributes to the making of a forged signature on an instrument is precluded from asserting the forgery against a person who, in good faith, pays the instrument or takes it for value or for collection. But if there`s no failure of the drawee bank to exercise ordinary care in paying or taking the instrument and the drawer made no contributions to forging and transferring the check, who should take the risk of forgery? It has been held that, since the bank has a strict duty to pay only authorized drafts on a customer` s account, the drawee bank should take the liability. But the contract between drawer and drawee bank is kinds of mandate contracts and Article 688 paragraph 3 of Korean Civil code, which provides that if a mandatary, without any negligence on his part, sustains damages through the management of the entrusted affairs, he may demand compensation therefor from the mandator. According to civil code, the drawer should bear the damage from forged check in case of no fault of both parties. But some other considerations of protection of consumers need to be regarded in unauthorized digital financial transactions.

[자료제공 : 네이버학술정보]
×