[2] In a case where Party A, upon delegation from Party B, opened a consignment account under the name of Party B with the authority to open the consignment account in the name of Party B, and used it to trade investment goods with a total of eight investment goods, including trust contracts, for about six years, and two trust contracts, which were last made by Party B, were alleged to be null and void since the power of representation was not granted, the case holding that Party B delegated Party B with the comprehensive authority to set up the consignment account as well as to conduct transactions using the consignment account

1. The power of representation arises from the principal's act to confer it, i.e., the act within the scope of the power of representation shall be determined by the content and interpretation of an individual authorized act (see Supreme Court Decision 97Da23372 delivered on September 30, 197, etc.).

2. The reasoning of the lower judgment and the record reveal the following facts.

(1) On March 30, 2007, Nonparty 1, the father of the Plaintiff, opened a consignment account in the name of the Plaintiff (hereinafter “instant account”) on behalf of the Plaintiff at Defendant Seocheonan Branch, which was delegated by the Plaintiff with the authority of opening the Defendant’s consignment account. On the same day, the consignment account in his name was also opened, and both the instant account and the transaction seal of his own name were registered as the Plaintiff’s seal impression.

(2) On behalf of the Plaintiff on the day of opening the said account, Nonparty 1 invested in the Defendant’s dongyang Small and Medium-sized Dividends 1 Fund, and paid KRW 29,90,000 as the investment amount using the instant account.

(3) On October 24, 2008, Nonparty 1 applied for the change of the Plaintiff’s seal impression or the re-issuance of the passbook on behalf of the Plaintiff at the Defendant Seocheonan Branch, and attached the Plaintiff’s seal impression to the instant account, and subsequently transferred KRW 22 million from the instant account to the Plaintiff’s or Nonparty 2’s national bank account.

(4) On March 25, 2009, Nonparty 1 deposited KRW 22,513,116 in the instant account after being redeemed on April 12, 2010, and deposited KRW 22,50,50,50,50 in the Plaintiff’s new bank account on the same day. Nonparty 1 transferred KRW 22,50,50,50 to Nonparty 3’s new bank account on the same day.

(5) On July 16, 2012, Nonparty 1 issued the cash card of the instant account on behalf of the Plaintiff at the Defendant Digital Branch, and changed the Plaintiff’s seal imprint from the Plaintiff’s seal imprint to his seal imprint. At that time, Nonparty 1 presented the Defendant the passbook, the Plaintiff’s power and certificate of personal seal impression, and the Plaintiff’s driver’s license.

(6) On behalf of the Plaintiff on July 18, 2012, Nonparty 1 entered into a lease agreement with Nonparty 4 on behalf of the Plaintiff, setting a deposit of KRW 125 million with respect to the Seo-gu, Seo-gu, Seocheon-gu ( Address omitted) ○○ apartment 104 Dong 702 (hereinafter “instant apartment”) and KRW 10,5 million, and the term of lease from July 30, 2012 to September 30, 2014. Nonparty 4 received KRW 4 million on the same day and KRW 18 million on July 30, 2012 from Nonparty 4, respectively.

(7) On January 10, 2013, Nonparty 1 entered into, on behalf of the Plaintiff, a second trust contract of this case with the Defendant for the trust amounting to KRW 10 million on behalf of the Plaintiff, from January 10, 2013 to April 17, 2013 as indicated in the holding of the lower judgment, which determined from January 10, 2013 to April 17, 2013, respectively. < Amended by Act No. 11735, Jan. 10, 2013; Act No. 11903, Jul. 10, 2013>

(8) On April 18, 2013, the period of the instant trust contract expires, the Defendant deposited the instant account in total of KRW 10,143,176 on April 18, 2013, and the Plaintiff’s type Nonparty 3 transferred KRW 5 million from his national bank account to the instant account on April 25, 2013. On April 29, 2013, Nonparty 1 entered into a trust contract of this case with the trust amount of KRW 15 million on behalf of the Plaintiff at Defendant Busan Branch, as indicated in the lower judgment, with the trust amount of KRW 15 million from April 29, 2013 to October 27, 2013.

(9) On July 11, 2013, when the period of the instant second trust contract expires, the Defendant deposited 30,886,112 won in total with the trust principal and earnings to the instant account. From July 16, 2013 to July 31, 2013, Nonparty 1 deposited 6,40,000 won in total from the instant account or transferred 6,40,000 won to the agricultural bank account under its name, and the balance of the instant account is less than 26,013,920 won. On August 7, 2013, Nonparty 1 transferred KRW 4,00,000 from his national bank account to the instant account, and on behalf of the Plaintiff, concluded the instant trust contract with each of the instant trust contracts (hereinafter collectively referred to as “instant trust contract”) from July 21, 2013 to the instant trust contract with each of the instant trust contracts as indicated in the lower judgment.

3. In light of the following circumstances, the lower court determined that the Plaintiff’s comprehensive delegation of the instant account to Nonparty 1 cannot be deemed to have delegated the authority to conclude each of the instant trust contracts solely on the sole basis of the fact that the Plaintiff entrusted Nonparty 1 with the authority to conclude each of the instant trust contracts, and that the Defendant’s assertion of representation or implied ratification was not recognized, and that the obligation to return unjust enrichment with respect to the aggregate amount of KRW 45

(1) It cannot be deemed that the instant account is naturally premised on the conclusion of a trust agreement.

(2) Each of the instant trust contracts provides that credit rating shall invest 100% in commercial papers and electronic short-term bonds which are disqualified for investment, and is highly dangerous as it may cause an original loss.

(3) The time when Nonparty 1 opened the instant account on behalf of the Plaintiff is March 30, 2007. The time when Nonparty 1 concluded the instant trust contract on January 10, 2013. The time when the first trust contract was concluded on April 29, 2013. The time when the second trust contract was concluded on August 7, 2013, when six years elapsed from the opening of the instant account on August 7, 2013. The degree of transactions via the instant account was the deposit, stocks, and RP transactions before entering into the instant trust contract and each of the instant trust contracts.

4. However, it is difficult to accept the above determination by the court below for the following reasons.

(1) According to the records and the facts as seen earlier, the following circumstances are revealed.

① The instant account is basically an entrustment account of a securities company for the transaction of stocks, etc., and does not dispute the fact that the Plaintiff delegated Nonparty 1 with the authority to open, etc. of the instant account.

② However, if the Plaintiff appears to have delegated only the authority to open the instant account to Nonparty 1, it should be revealed that Nonparty 1 had any act of delegation or authorization with respect to the instant transaction on behalf of Nonparty 1 after opening the instant account. However, there is no such circumstance in the record.

③ Rather, on March 30, 2007, on the date of opening the instant account, the Plaintiff appears to have not directly opened, withdrawn, or traded by using the instant account except for the transfer of KRW 29.9 million from the Plaintiff’s CMA account to the instant account. Moreover, even with regard to KRW 29.9 million, Nonparty 1 transferred the said money from his agricultural bank or consignment account to the Plaintiff’s said CMA account before the said money was transferred to the instant account, and even on April 19, 2007, it is difficult to readily conclude that the said money was entirely under the Plaintiff’s management, such as transfer of KRW 13.6 million from his said account to the said CMA account.

④ Nonparty 1’s lease of the instant apartment owned by the Plaintiff on behalf of the Plaintiff, and the deposit amount of KRW 122,200 million, out of KRW 125,00,000,000, was deposited into the instant account. However, the Plaintiff was only 23 years old at the time of acquisition of the instant apartment ownership, and there was no evidence that the Plaintiff was responsible for the purchase fund of the instant apartment. In light of the fact that there was no evidence that the actual owner of the instant apartment was the Plaintiff, as well as the fact that the said deposit was deposited into the instant account, according to the transaction details shown in the record, it seems that the Plaintiff was not directly involved in the instant account even after the deposit was deposited into the instant account.

⑤ Above all, Nonparty 1 appears to have been managed by all the passbooks, cash card, transaction seal, etc. of the instant account. Considering that: (a) the Plaintiff’s account from the instant account to Nonparty 2’s national bank account on October 24, 2008; (b) KRW 22,500,500 on April 12, 2010 to the Plaintiff’s new bank account; or (c) the transfer of KRW 5 million from Nonparty 3’s national bank account to the instant account on April 25, 2013, prior to the conclusion of the instant trust contract, to the transfer of KRW 5 million from the instant account to the instant account; and (d) the transfer of KRW 5 million from Nonparty 1 to the instant account on April 25, 2013 to the payment of trust amount under the instant trust contract; and (e) since Nonparty 1 opened the instant account, it appears that Nonparty 1 was responsible for the instant comprehensive transaction with Nonparty 1’s agent until around six years prior to the instant account.

(6) In addition, since the opening of the Account in this case, transactions with 8 investment goods using the Account in this case, including the preceding 1, 2, and each trust contract in this case, were conducted, and all of the goods are likely to cause loss to principal. In particular, the preceding 1, and 2 trust contracts in this case were in fact profits, despite the absence of any difference in risk, etc. as to the goods similar to each of the instant trust contracts. As such, even if 8 investment goods were traded with the Account in this case, it was delegated to Nonparty 1 with authority for the transaction of the investment goods in this case, and it is also against the empirical rule to deem that there was no delegation of authority for the transaction of the investment goods in this case, even though 8 investment goods were traded with the Account in this case.

7) On the other hand, even before the conclusion of the instant trust contract as well as after the conclusion of each of the instant trust contracts, the Defendant continuously sent the Plaintiff the details of transactions and the report on trust operation of the instant account to e-mail after changing the Plaintiff’s address or method of notifying the mail to e-mail, and it appears that the Plaintiff could have sufficiently verified the details of transactions, etc. of the instant account. Nevertheless, the Plaintiff did not request the Defendant to change the transaction seal and password of the instant account or take measures such as requesting the Defendant to prohibit the Plaintiff from acting

(8) On April 2013, around the time when the term of the preceding first trust contract of this case expires, when the employee of Defendant Busan Branch notifies the Plaintiff of the expiration of the term of the preceding one trust contract of this case, it appears that the Plaintiff had a fling period to the effect that the said employee was unaware of the existence of the preceding one trust contract of this case. However, the Plaintiff did not take any measures thereafter against the Defendant.

(2) Examining the aforementioned facts and the aforementioned circumstances in light of the legal principles as seen earlier, it is reasonable to view that the Plaintiff delegated Nonparty 1 with the comprehensive authority regarding the transaction using the instant account as well as the opening of the instant account. Nevertheless, the lower court determined that the Plaintiff could not be deemed to have delegated the authority regarding the conclusion of each of the instant trust contracts to Nonparty 1 on the grounds of its stated reasoning. In so doing, it erred by misapprehending the legal doctrine regarding granting of the power of representation, or by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules.

5. Therefore, without further proceeding to decide on the remaining grounds of appeal by the assent of all participating Justices, the judgment of the court below is reversed, and the case is remanded to the court below for further proceedings consistent with this Opinion.

Justices Kim Shin (Presiding Justice)