2003.04.08

2002 (Ju) 415

Minshu Vol. 57, No. 4, at 337

Judgment upon the case concerning deposit withdrawal by automated teller machine and the application of Article 478 of the Civil Code

Case to seek return of deposit

Judgment of the Third Petty Bench, quashed and decided by the Supreme Court

Fukuoka High Court, Judgment of December 25, 2001

1. Article 478 of the Civil Code shall apply to the case of deposit withdrawal by automatic teller machine.

2. In order to determine non-negligence on the part of the bank in a case where a person without rights withdrew another person's deposit through an automatic teller machine using a bankbook or a cashcard and inputting the PIN, it is a requirement for the bank to have taken maximum preventative measures in order to prevent such a kind of withdrawal being made by a person without rights, with respect to the installation and management of the deposit withdrawal system using automatic teller machines, for example, by clearly specifying to depositors that a withdrawal may be conducted as above.

3. Given the fact that a withdrawal of the deposit can be conducted through an automatic teller machine by using the bankbook and inputting the PIN, yet the bank did not clearly specify this system to its depositors in the deposit regulations, even though the authentic bankbook was used and it was confirmed mechanically that the entered PIN was the same as the registered identification number, it can be concluded that the bank is negligent with respect to the withdrawal by a person without rights through an automatic teller machine.

( concerning 1, 2 and 3) Article 478 of the Civil Code
A performance made to a quasi-possessor of the claim is effective only if it was done bona fide.

(concerning 2 and 3) Article 91 of the Civil Code
If the parties to a juristic act have declared an intention which differs from any provisions of laws or ordinances which are not concerned with public policy, such intention shall prevail.

1.The judgment of the original instance court is quashed and the judgment of the first instance is revoked.
2. The appellee shall pay the appellant 8,010,000 yen plus interest at a 6% annual rate from March 18, 2000 until it is completely paid.
3. The appellee shall be liable to bear the whole cost of the lawsuit.

With respect to the jokoku appeal reason No.2 of the jokoku appellant's representatives, NAKAMURA Sawako and TAKAHASHI Hiromi
1. The following is the summary of facts determined lawfully by the original instance.
(1) The appellant opened a savings account and concluded a savings account contract with the Ｐ branch of the appellee on October 16, 1998. The appellant received a bankbook on making the contract (hereinafter referred to as "the bankbook of the case"), applied for the use of a cashcard and notified the appellee of the personal identification number (hereinafter referred to as "PIN of the case") which is the same as the four figures of the car registration number owned by the appellant (hereinafter referred to as "car of the case") and received a cashcard.

(2) The appellee has installed automatic teller machines that enable depositors to withdraw their deposit by using a bankbook or a cashcard and entering the PIN after they have registered their PIN (hereinafter this kind of withdrawal is to be referred to as an "automatic withdrawal", where withdrawal by a bankbook is an "automatic withdrawal by bankbook" and withdrawal by a cashcard is an "automatic withdrawal by cashcard").

The following is the procedure of automatic withdrawal by the appellee.
1 When a depositor inserts his/her bankbook or cashcard into an automatic teller machine and enters the PIN and amount, the automatic teller machine reads the magnetic stripe of the bankbook or the cashcard, examines the specifications of the account and validity concerning other areas, encodes the PIN and sends it to the host computer. The PIN is not written on the magnetic stripe on the bankbook or the cashcard.

2 The host computer examines the PIN, balance available for payment and other current information (missing cashcard or bankbook, suspension of payment, etc.) and sends instructions to the automatic teller machine regarding whether the money is payable or not. Where an instruction that the money is payable is provided, the automatic teller machine conducts payment processing.

(3) The appellant parked his car at a monthly contract parking lot neighboring his house, with the bankbook of the case in the dashboard around 9:30 p.m. on November 22, 1999. The bankbook of the case was stolen with the car of the case in the period between then and 10:40 a.m. the next day.

Following that somebody withdrew money from the said deposit account by automatic teller machines in the Ｑ branch, Ｒ branch and Ｓ branch of the appellee through the automatic withdrawal by bankbook by using the bankbook of the case and entering the PIN of the case a total of 17 times between 8:52 a.m. and 9:56 a.m. on November 24. The total amount of withdrawal from the said automatic teller machines was 8,010,000 yen (hereinafter referred to as "withdrawal of the case").

(4) The appellant made a robbery report of the car of the case to the police station on November 23, however, at that time he did not realize that the bankbook of the case was missing. Later, in the evening of that day, he remembered that he had kept the bankbook of the case and a postal savings book entrusted by his brother in the car of the case.

Around 9:00 a.m. on November 24, the appellant made a report by telephone to the post office explaining that his brother's postal savings book had been stolen. After meeting with visitors, the appellant made a missing report of the bankbook of the case to the Ｐ branch of the appellee. However, the withdrawal of the case had already been conducted and the code was not input into the computer until 10:53 a.m. that day.

(5) On the card regulations (Ｔ card regulations) of the appellee, it is stipulated that the deposit can be withdrawn by automatic withdrawal by cashcard. It is also stipulated that when the deposit is withdrawn after validity of the cashcard is confirmed by magnetic record of the used cashcard, and the input PIN is verified as the same as the registered PIN, an appellee shall be exempted from responsibility in principle. However, in the saving deposit regulations and card regulations of the appellee, it is not stipulated that the deposit can be withdrawn by means of automatic withdrawal by bankbook and there is no non-responsibility clause for such withdrawals. The appellant has deposited money using a cashcard through an automatic teller machine, however, the appellant has never withdrawn money by a bankbook or a cashcard and the appellant did not know that money could be withdrawn by automatic withdrawal with a bankbook.

(6) The appellant brought a lawsuit against the appellee demanding the return of the deposit of 8,010,000 yen caused by the withdrawal of the case. The complaint was served to the appellee on March 17, 2000.

2. This is a case where the appellant sued the appellee claiming that the withdrawal of the case is invalid, or even if it is not invalid, the performance did not serve its purpose, and demanded the return of the 8,010,000 yen deposit caused by the withdrawal of the case or the same amount of money as damages caused by default, and the payment of late charges based on the business legal interest for the amount, during the period from the next day of the service of the complaint to the completion of payment. (Return of the deposit and damages can be claimed selectively.)

3. The original instance decided that under the given facts, the withdrawal of the case was effective of performance according to Article 478 of the Civil Code, therefore, there was no reason for the claim for the return of the deposit, and the withdrawal of the case could be seen as the performance serving its purpose and there was no reason for awarding the damages claimed by the appellant caused by default. In the end, it decided to dismiss the demands made by the appellant.

4. However, the decision of the original instance which found the validity of performance of withdrawal of the case according to Article 478 of the Civil Code cannot be accepted.

The reasoning for that decision is as follows.
(1) For the withdrawal of a deposit by a person without rights by means of automatic withdrawal, Article 478 of the Civil Code shall be applied, and the application of the article shall not be denied because it was not conducted face-to-face.

The case where a performance made to a quasi-possessor of claim becomes effective according to Article 478 of the Civil Code shall be restricted to when the payer is bona fide and not negligent. In order to determine whether the bank was not negligent with respect to the withdrawal of the deposit by means of the automatic withdrawal for the quasi-possessor of claim, it is a requirement for the bank not only to operate the machine properly at the time of withdrawal, but also to perform its duties to the utmost to prevent such a kind of withdrawal by a person without rights, with respect to the installation and management of deposit automatic withdrawal systems, for example, by clearly specifying to depositors that automatic withdrawals can be conducted, so as to prevent mismanagement of the PIN and so on by depositors. The reasoning for this is as follows.

Differing from the withdrawal over the counter, the automatic withdrawal is conducted without the attention of the bank clerk with regard to the behavior, responses, etc. of the person who requests the withdrawal of the deposit, without determination on the existence of authority of the person, or without taking action to confirm it if deemed necessary. It is solely conducted by automatical confirmation of the used bankbook and so on as being authentic and the input PIN as the same as the one that is registered, after which it is determined that the person who requests the withdrawal has the authentic right. In the end, so long as the authentic bankbook is used and the correct PIN is input, who conducts the act does not matter completely. In the case of an automatic withdrawal, considering the fact that authority of the person who receives performance is decided automatically and formally by the system established by the bank, in order to claim that the bank is not negligent for the withdrawal by a person without rights, it is not only required for the bank to confirm the bankbook and so on and PIN at the time of withdrawal with an automatic and appropriate method, but also to establish a system which prevents the withdrawal by a person without rights as far as possible and to manage the operation, for example, by reducing user's error in using the automatic withdrawal system or making depositors recognize the importance of the PIN and so on.

(2) Based on the above facts, the appellee adopted the system of automatic withdrawal by bankbook, however, the appellee did not stipulate it in the card regulations and so on, therefore, did not perform the duty to specify the system to depositors, and in the end, the appellant did not know that his deposit could be withdrawn by means of automatic withdrawal by bankbook. (According to the record, the appellee put up the notice entitled "For customers using ATMs", in places where automated teller machines were installed, and showed the withdrawal fee for the "customers who use the bankbook and cashcard of the bank", however, it is not sufficient specification for the depositors.)

In order to eliminate the possibility of withdrawal by a person without rights, it is necessary to make depositors recognize that their PIN, bankbooks, etc. can be used for automatic withdrawal and make them effectively control the safekeeping. Based on this, in order to decide that a bank adopting the system of automatic withdrawal by bankbook performed its duties with respect to the installation and control of the system, it is a requirement to have shown depositors clearly the possibility of automatic withdrawal by bankbook by stipulating it in deposit regulations. Therefore, it cannot be regarded that the appellee performed its duties with respect to the system of automatic withdrawal by bankbook for eliminating the withdrawal by a person without rights, and in the end, the appellee was negligent with regard to the withdrawal of the case. However, based on the above facts, the appellant made the PIN of the case the same as the four-figure registration number of the car of the case. Additionally, he parked his car on a parking lot neighboring his house keeping the bankbook in the dashboard. Therefore, it can be regarded that somebody stole the bankbook with the car and the PIN of the case was correctly guessed enabling the withdrawal of the case to be conducted. For this reason, it is determined that the appellant was also culpable for the withdrawal of the case, however, with this degree of culpability, it is not sufficient to overturn the above decision that found negligence of the appellee.

In conclusion, for the withdrawal of the case, the effect of performance according to Article 478 of the Civil Code cannot be found.

5. From all of the above, in the above decision of the original instance, apparent violation of laws can be seen which have affected the judgment. Therefore, the line of argument can be accepted because it claims this point, and the original judgment shall be quashed. Based on the above instruction, there is a reason for the deposit return claim by the appellant. Therefore, the judgment of the first instance shall be revoked because it dismissed the claim, and the appellant's claim shall be accepted.

In the end, the judgment was rendered in the form of the main text by the unanimous consent of the Justices.

Justice UEDA Toyozo
Justice KANATANI Toshihiro
Justice HAMADA Kunio
Justice FUJITA Tokiyasu