은행의 과실에 의한 부실기재책임에 관한 연구 － 미국의 Restatement of Torts와 판례법을 기초로 －

초록

At present, commercial banks are increasingly providing credit information on behalf of their customers in response to various credit inquiries by non-customers. In responding to these inquiries, commercial banks sometimes may provide an inaccurate assurance of a borrower's credit status to inquirers by accident. A bank offering inaccurate information to a third party who inquires about the credit situation of a bank customer is liable under the theories of negligent or fraudulent misrepresentation. Although the inquirer is neither a bank customer nor a party to a business relationship with the bank, current theories of misrepresentation will allow him to recover damages in certain circumstances. The U.S. courts applying misrepresentation theories have formed logical and consistent case laws determining which circumstances give rise to liability. This study will first introduce the negligent misrepresentation doctrine in the Restatement (Second) of Torts § 552, and then discuss the development of the bank's duty to an inquirer and the theory of reliance which plays an important role in the credit inquiry context. It also deals with two special problems such as selective disclosure and continuing duty. In 2007, the Supreme Court of Korea held one korean commercial bank liable due to its negligent misrepresentation in response to a credit inquiry by a third party. This was the first case in Korea dealing with the negligent misrepresentation theory. Probably, the Court was severely influenced by the Restatement of Torts and the case laws of the United States because its ruling was very similar to the U.S. counterparts. This study will analyze this case in detail and suggest some fatal errors in its holding based on the original theory in the United States.

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