2. The plaintiff's incidental appeal and the defendant's remaining appeal are dismissed, respectively.

3. A. The plaintiff shall pay to the defendant 22,971,366 won with the return of provisional payment and 5% interest per annum from July 21, 2004 to March 24, 2005, and 20% interest per annum from the following day to the date of full payment.

B. The defendant's remaining provisional payment claim is dismissed.

C. The above paragraph (a) can be provisionally executed.

4. The total cost of the lawsuit, including the cost of filing an application for provisional payments, shall be four minutes and one of them shall be borne by the plaintiff and the remainder by the defendant respectively.

The defendant shall pay to the plaintiff 128,662,151 won with 20% interest per annum from the day following the delivery of a copy of the complaint of this case to the day of complete payment.

2. The defendant's purport of appeal

The part against the defendant in the judgment of the first instance shall be revoked. The plaintiff's claim shall be dismissed.

3. Purport of the plaintiff's incidental appeal

The part of the judgment of the court of first instance against the plaintiff falling under the order to pay below shall be revoked.

The defendant shall pay to the plaintiff 3,356,004 won with 20% interest per annum from the day following the delivery of a copy of the complaint of this case to the day of complete payment.

4. Purport of request for the return of provisional payments

The plaintiff shall pay to the defendant 122,080,215 won with 5% interest per annum from July 21, 2004 to the sentencing day of this case, and 20% interest per annum from the next day to the day of full payment.

The following facts are not disputed between the parties, or there is no dispute between Gap evidence 1-1-4, 1-6-1-5, 3-1-5, 3-1-5, 4-5, 6-1-5, 7-1-4, 8-1-5, 9-1-6, 11-3, 12-1-3, 13-14, 15-1-3, 16, 17, 1, 2-1, 3-2, 3-4, 4-1-2, and 4-2, respectively.

A. Conclusion of a contract for fidelity guarantee insurance between the plaintiff and the defendant

(1) On October 11, 1999, the Plaintiff and the Defendant concluded an insurance contract with Nonparty 1, who is an employee of the Plaintiff’s Busan Branch, as the surety; the insurance period from April 1, 1999 to March 31, 2002; the amount of insurance coverage is set at KRW 60,000,000; ② Nonparty 2, who is an employee of the Plaintiff’s Busan Branch Office, as the surety on November 25, 199; the insurance period is set at KRW 50,00,000,000 for 0,000 for 0,000,000 won for 30,000 won for 10,000 won for 0,000 won for 30,000 won for 10,000 won for 30,000 won for 30,000 won for 30,000 won for 19,000 won for 30,00.

(2) At the time of entering into each of the above insurance contracts, the Plaintiff and the Defendant agreed to apply the general terms and conditions and the additional risk-sharing special terms and conditions (Ⅰ). Article 1 of the instant personal guarantee terms and conditions (hereinafter referred to as the “ordinary terms and conditions”) provides that “The insured shall compensate direct damage (including damage suffered by the insured due to the above legal causes) caused by theft, robbery, fraud, embezzlement, or breach of trust during the insurance period or by taking advantage of his/her position and duties to compensate for damages.” Article 3 provides that “The insured shall endeavor to prevent the occurrence of the insurance accident during the insurance period.” Article 1 of the instant personal guarantee terms and conditions provides that “The insured shall endeavor to prevent and mitigate damage if the insurance accident occurred, to compensate for damages incurred by the insured with the consent of the company to prevent or mitigate damage under paragraph (1) shall be compensated by the company, and the company shall pay damages to the insured without delay within 0% of the insurance proceeds determined by the court’s order to compensate for damages under paragraph (2).”

B. The principal’s tort, Plaintiff’s damages, etc.

(1) The tort committed by Nonparty 1 and the Plaintiff’s damages and expenses

(A) From April 27, 197 to October 6, 1999, Nonparty 1 purchased and sold the shares deposited in the name of Nonparty 5 without being entrusted by Nonparty 5, a customer, at will, and suffered damages of KRW 840,787,454 in total, from October 6, 199. As to this, on September 5, 200, he/she was convicted of a crime of occupational breach of trust with the Busan District Court, and filed an appeal and a final appeal, but the Supreme Court convicted him/her. Accordingly, Nonparty 6, a title holder of the relevant account, filed a lawsuit with the Plaintiff and Nonparty 1 as a co-defendant for compensation for damages on the ground of a voluntary trade by Nonparty 1 with the Busan District Court (Case Number omitted).

(B) However, on October 24, 2001, the above court dismissed the claim for damages of Nonparty 6 on the ground that Nonparty 6 merely lent only the name to Nonparty 5. Nonparty 6 appealed and appealed (number omitted). Nonparty 5, who was recognized as the actual account holder, filed a lawsuit against the Plaintiff and Nonparty 1 as the Busan District Court (number omitted) separate from the lawsuit.

(C) On May 7, 2002, during the appellate trial due to Nonparty 6’s appeal, the Busan High Court decided on May 7, 2002 that “the Plaintiff and Nonparty 1 shall jointly and severally pay 400,000,000 won to Nonparty 5 until June 10, 2002, and shall waive Nonparty 6’s claim and the remainder of Nonparty 5’s claim.” The decision became final and conclusive around that time, and accordingly, on June 10, 2002, the Plaintiff paid 40,000,000 won to Nonparty 5.

(D) Meanwhile, in order to respond to the lawsuit filed by Nonparty 6, the Plaintiff paid KRW 7,700,000 as advance payment, KRW 7,700,00 as advance payment, KRW 7,00 as advance payment, and KRW 2,200,00 as advance payment. Nonparty 5 paid KRW 19,80,000 as advance payment in order to respond to the lawsuit filed by Nonparty 5 for damages, including KRW 7,700,000 + KRW 7,700,000 + KRW 2,200,000 + value-added tax (including KRW 2,200,000 + value-added tax).

(2) Illegal acts committed by Nonparty 2 and the Plaintiff’s damages and expenses

From June 12, 200 to November 200, Nonparty 2 traded shares in the account in his name without being entrusted by Nonparty 7, a customer, from June 12, 2000 to Nonparty 7, thereby causing damage equivalent to KRW 14,293,042. Accordingly, Nonparty 7 filed a lawsuit claiming damages against the Plaintiff under the name of the Busan District Court (Case Number omitted), but appealed upon the dismissal judgment. The appellate court on May 13, 2002 (Case Number omitted of Busan District Court) rendered a decision on May 13, 200 that “the Plaintiff shall pay 7,000,000 won to Nonparty 7, and Nonparty 7 renounced the remaining claims,” and the decision was finalized at that time, and the Plaintiff paid KRW 70,000 to Nonparty 7, June 12, 200, including the amount of value-added tax to Nonparty 40,700, and the Plaintiff paid KRW 70,700,000.

(3) Illegal act of Nonparty 3 and Plaintiff’s damages

From September 10, 1998 to January 2, 1999, Nonparty 3, who had worked at the Plaintiff’s Seocho Branch, had been engaged in futures trading at his own expense using a consignment account under his name, and caused damage to Nonparty 8. On March 26, 199, Nonparty 3 and Nonparty 9, who had been the actual account holder in Nonparty 8’s name, paid 70,000,000 won to Nonparty 8 for the compensation of damages. Of them, Nonparty 30,000 won was found to have not been paid to Nonparty 2 on March 31, 199 to Nonparty 2, 199 to Nonparty 30, 15,000,000 won, and 17,000,000 won to the Plaintiff on September 30, 199 to Nonparty 2, 300,000 won agreed to the Plaintiff on March 31, 200, respectively.

(4) Illegal acts committed by Nonparty 4 and the Plaintiff’s damages and expenses

The non-party 4, who had worked as an investment counselor at the Plaintiff’s Seo-ju Branch from March 14, 200 to April 21, 200, had arbitrarily traded shares under his name without being entrusted by the non-party 10, and suffered losses to the non-party 10. After that, the non-party 10 filed a lawsuit claiming damages against the plaintiff under the name of the Jung-ju District Court (Case Number omitted) for reasons of the voluntary sale and over-sale, and its delay damages. On August 8, 2002, the above court decided that the plaintiff paid 15,00,000,000 won to the non-party 10, and according to that decision, the plaintiff shall be paid 30,000 won to the non-party 10,000 won (the value-added tax shall be included in the non-party 10, 400,000 won, and the plaintiff shall be paid 30,400,000 won.

C. Plaintiff’s insurance claim against Defendant

On June 7, 2002, the Plaintiff claimed 14,647,311 won, excluding the amount of KRW 5,352,689 which the Plaintiff claimed from Nonparty 3’s fidelity guarantor, out of the amount of KRW 20,00,000, which the Plaintiff paid to Nonparty 8 due to Nonparty 3’s tort, and the aggregate of KRW 11,40,000,000 and attorney’s expenses paid to Nonparty 7 due to Nonparty 2’s tort on June 28, 2002, KRW 14,40,000 and KRW 4,400,000, KRW 80, KRW 400, KRW 800, KRW 800, KRW 800, KRW 4000, KRW 8008, KRW 4008, KRW 800, KRW 8008, KRW 108,000, KRW 208,008.

2. The party's assertion and judgment as to it

A. The part concerning the claim for insurance money against the tort by Nonparty 1, Nonparty 2, and Nonparty 4 of the respondent

(1) According to the above facts, the defendant, who is the insurer of each insurance contract of this case, is obligated to pay to the plaintiff the insurance money and delay damages within the scope of the above insurance amount among the damages suffered by the plaintiff due to the plaintiff's breach of trust during each insurance period pursuant to Article 1 of the Identity Guarantee Clause applicable to the non-party 1, non-party 2, and non-party 4, unless there are special circumstances.

(2) Part of attorney fees claim

(A) The party's assertion

The plaintiff asserts that the defendant is obligated to pay the attorney's fees to the plaintiff as insurance money, regardless of whether the defendant consented in advance, since the plaintiff's attorney's fees paid by the plaintiff constitute "the direct damage to the property incurred by the insured by the principal's criminal act" under Article 1 of the General Terms and Conditions, ① the sum of the attorney's fees paid by the plaintiff to respond to the lawsuit for damages filed by the victims due to the non-party 1, the non-party 2, and the non-party 4, constitutes "the expenses incurred by the insured by the principal's criminal act," and the attorney's fees paid by the plaintiff constitute "the expenses incurred by the insured for the prevention or mitigation of damage" under Article 3 (2) of the General Terms and Conditions, regardless of whether the sum of the insurance money and the attorney's fees paid by the plaintiff exceeds the purchase amount of insurance."

In regard to this, the defendant did not directly compensate for any property damage included in the damages covered by Article 1 of the General Terms and Conditions, and the attorney's fees paid by the plaintiff fall under the expenses paid by the plaintiff for the prevention or mitigation of damages caused by the plaintiff's tort, such as non-party 1, and Article 3 of the General Terms and Conditions provides that "the expenses incurred for the prevention or mitigation of damages shall be compensated only when the defendant's consent is obtained." In this case, the defendant asserted that the plaintiff paid the attorney's fees without the defendant's consent, and thus

(B) Determination

① First, as to whether the attorney fee paid by the Plaintiff constitutes a direct damage to property covered by Article 1 of the General Terms and Conditions, it cannot be said that there is a proximate causal relationship between the tort itself which caused the claim for damages and the attorney’s fee, and thus, it is difficult to include the attorney’s fee in itself as a damage liability arising from the tort. Thus, this cannot be viewed as a direct damage to property as stipulated in Article 1 of the General Terms and Conditions.

② Next, we examine whether the Plaintiff may claim the attorney’s fees from the Defendant pursuant to Article 3 of the General Terms and Conditions.

Article 3(2) of the General Terms and Conditions provides that “The expenses incurred or beneficial to be incurred by the insured with the consent of the company in order to prevent or mitigate damage under paragraph (1) exceed the insurance coverage amount, even if the expenses exceed the insurance coverage amount, the company is bound to compensate for the damages.” Thus, the Plaintiff’s assertion is without merit, since there is no evidence to support the fact that the Plaintiff paid the attorney’s fees with the consent of the Defendant, even if they fall under “the expenses” necessary or beneficial to prevent the occurrence of damage or the expansion of damage, or to prevent the expansion of damage.

As to this, the Plaintiff interpreted Article 3(2) of the General Terms and Conditions as "any case where the insurer grants prior consent of the insurer or any case where the insured's expenses are wholly denied," it constitutes an unfavorable alteration to the insured under Article 680 of the Commercial Act, which provides that "the insurer shall bear expenses necessary for the prevention and mitigation of damage," and therefore, the above restriction clause is null and void against Article 663 of the Commercial Act. Therefore, the above restriction clause provides that "in the case of expenses necessary for the prevention or mitigation of damage, the insurer shall bear such expenses regardless of the insurer's consent, and in the case of expenses exceeding an appropriate level, the insurer shall bear them only when the insurer obtains the consent of the insurer." Thus, the Plaintiff's attorney's fees should be borne by the insurer. Therefore, this case's insurance contract is an appropriate cost. Therefore, the insurer's assertion that the insurance company and the parties to the insurance contract should be held to compensate for damage by bearing legal liability for the loss to a third party is not necessary for the purpose of protecting the economic interests of the insurer.

③ Article 720(1) of the Commercial Act provides that “The expenses incurred by the insured in judicial or extra-judicial proceedings to defend a third party’s claim shall be included in the subject-matter insured.” Such defense expenses are based on the nature of liability insurance aiming at protecting the rights of the insured and vary in the cost of preventing damage and the basis of recognition under Article 680 of the Commercial Act, which are specifically acknowledged by policy needs for non-life insurance under the Commercial Act. Therefore, if the expenses paid by the insured constitute defense costs and the cost of preventing damage at the same time, the insured may arbitrarily assert it as the cost of preventing damage, regardless of whether they are defensive costs or as the cost of preventing damage, even if they exceed the insured amount, unlike the expenses to be borne by the insurer, the amount of defense expenses shall be recognized only to the extent that does not exceed the insured amount (excluding cases under the direction of the insurer).

With respect to this case, the attorney's fees paid by the plaintiff due to a tort such as public health team and non-party 1 constitute expenses to defend the victims' claim (this does not accept the defendant's claim that there is no liability to compensate for the attorney's fees paid without the consent of the insurer under Article 3 of the General Terms and Conditions). In light of the standard for the attorney's fees under the Rules on the Inclusion of Litigation Costs, the retainers and contingent fees paid by the plaintiff to the new law firm and the law firm's representative, the difficulty of the case, the progress of the lawsuit and the result of the conclusion of the lawsuit, etc., it can be deemed that the attorney's fees paid by the plaintiff are reasonable expenses. Thus, the defendant is obligated to pay 400,000,000 won for damages suffered by the plaintiff due to non-party 1's tort, and 100,000 won and 400,000 won for damages suffered by the plaintiff's new law firm's fees and 400,0000 won for damages.

(3) Judgment on the defendant's defense

(A) The defense of offsetting profit and loss

Defendant: (a) Nonparty 1, etc., the surety, committed an illegal act, such as voluntary sale, against a third party, and caused damages for which the Plaintiff is liable; (b) on the other hand, due to their voluntary sale, etc., the commission for securities transaction occurred; (c) the remaining portion of commission for securities transaction constituted 86% of the commission for the Plaintiff’s securities transaction, which constitutes 86% of the commission for the Plaintiff’s illegal act; (d) Nonparty 2’s commission for 451,207 and Nonparty 4’s commission for 86% of the commission for 524,660 and the commission for the Plaintiff’s illegal act, which was 27,086,680, which was 86% of the commission for the Plaintiff’s illegal act, was 23,294,544, which was 86% of the commission for the Plaintiff’s illegal act; and (e) the Defendant, as the surety, may oppose the Plaintiff as a defense against the principal obligor’s profits

On the other hand, if the interest of the victim was incurred on the ground of any unlawful act, the profit must be deducted under the principle of equity, but the deducted profit should be limited to not only the fact of causing the loss, but also the fact of proximate causal relation with the illegal act. Since the fee for securities transaction is not the profit gained by the illegal act of Nonparty 1, etc., but also the profit gained by the securities company in handling the delegated affairs according to the delegation contract with the customer, it cannot be deemed as the profit having proximate causal relation with the illegal act of Nonparty 1, etc., and considering its nature, it does not compensate the loss suffered by the securities company to the customer who is the victim according to the user's responsibility, it cannot be deemed as the profit to be deducted from the loss suffered by the securities company due to the loss. Accordingly, the defendant's defense is without merit.

(B) The request for reduction under the Guarantee of Good Faith Act

Furthermore, the defendant asserts that Article 6 (3) of the Fidelity Guarantee Act should apply mutatis mutandis to each of the instant contracts between the plaintiff and the non-party 1, which provides that "the court shall take into account the existence of the employer's fault in supervising the employee in calculating the amount of damages of the fidelity guarantor, the reason why the employee was made, the degree of attention in calculating the amount of damages of the fidelity guarantor, the change in the employee's duties or identity, and other circumstances." Accordingly, the defendant's liability to pay the insurance money should be reduced considerably by taking into account the plaintiff's negligence in failing to properly perform the duty to supervise the duties of non-party 1, etc.

However, in light of the fact that a guarantee insurance contract is a contract that provides a guarantee insurance company with compensation for damage to an insurance accident in return for the payment of insurance premiums of a policyholder, and in particular, as in this case, a guarantee insurance contract that provides a third party with compensation for damage caused by the insured's legal liability to the third party as a result of the insured's act of the insured's act as a person under consideration has the nature of a business liability insurance contract, it is difficult to see that the provisions of Article 6 (3) of the Guarantee of Secrecy Act are applicable, and therefore, the defendant'

(4) Sub-determination

Therefore, the defendant is obligated to pay to the plaintiff 94,214,840 won in accordance with each of the personal guarantee insurance contracts of this case (i.e., 60,000 won related to the non-party 1 + gold 11,40,000 won related to the non-party 2 + gold 22,814,840 won related to the non-party 4) and damages for delay calculated on June 28, 2002 at the date when the plaintiff requested the payment of each of the insurance proceeds. < Amended by Presidential Decree No. 17750, Jul. 16, 2002; Presidential Decree No. 17817, Nov. 7, 2002; Presidential Decree No. 17817, Sep. 10, 2003; Presidential Decree No. 17505, Mar. 24, 2005>

B. Part of the claim for insurance money against the tort of Nonparty 3 of the surety

The plaintiff asserts that the defendant is obligated to pay 14,647,311 won to the plaintiff as insurance money out of 20,000 won paid by the non-party 3 to the non-party 8. But the insurance period of the contract for fidelity guarantee with the non-party 3 as the guarantor is from November 26, 1997 to October 25, 198. The plaintiff's 14,647,311 won was covered by the non-party 9's insurance contract with the non-party 9's 90's 9's 9's 9's 9's 90's 9's 9's 9's 90's 9's 9's 90's 9's 90's 9's 9's 90's 9's 9's 90's 9's 9's 90's 9's 9's 's 9's 9's 's 9''''''''''

3. Determination as to the application for the return of provisional payments

On July 21, 2004, the Plaintiff received KRW 122,080,215, including the principal amount of KRW 114,014,840 and damages for delay from September 10, 2003 to July 21, 2004 pursuant to the judgment of the first instance court of the provisional execution of this case from the Defendant, and KRW 122,080,215,000,000,000 from September 10, 2004, there is no dispute between the parties. Therefore, the provisional execution sentence against the part against the Defendant against which the Plaintiff ordered payment exceeding the above amount of the above amount of the provisional payment becomes effective by the judgment of this case. Thus, the Plaintiff is obligated to return the amount after deducting the above amount of the provisional payment from KRW 122,080,215.

Furthermore, upon examining the amount to be returned by the Plaintiff, KRW 122,080,215 paid by the Defendant on July 21, 2004 was appropriated for damages for delay calculated at the rate of 6% per annum from September 10, 2003 to July 21, 2004 (i.e., gold KRW 94,214,840 x 0.06 x 0.06 x 316 x 316 / 365 x 117,186 (i.e., gold KRW 122,080,215 - gold KRW 4,894,09) from September 10, 203 to July 21, 2004 (i.e., the amount to be returned by the Plaintiff).

Therefore, the Plaintiff is obligated to pay to the Defendant 22,971,366 won among the provisional payments received from the Defendant and damages for delay calculated at the rate of 5% per annum as prescribed by the Civil Act from July 21, 2004 to March 24, 2005, which is the date of this decision, and 20% per annum as prescribed by the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the next day to the date of full payment.

4. Conclusion

Therefore, the plaintiff's claim of this case is justified within the above scope of recognition, and the remaining claims are dismissed for lack of reason. Since the judgment of the court of first instance is unfair with some different conclusions, the part against the defendant ordering payment in excess of the above cited money among the judgment of the court of first instance is revoked, and the plaintiff's remaining appeal and the plaintiff's incidental appeal are dismissed for lack of reason. The defendant's claim for return of provisional payment is accepted within the above scope of recognition, and the remaining claims are dismissed for lack of reason. It is so decided as per Disposition.

Judges Cho Jong-ok (Presiding Judge) (Presiding Judge) Kim Jae-sik