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(영문) 서울고법 1972. 11. 29. 선고 71나1691 제11민사부판결 : 상고

[손해배상청구사건][고집1972민(2),372]

Main Issues

The case holding that there is a negligence on the part of the victim where a loss was incurred by transferring forged bills in exchange for cash.

Summary of Judgment

Since the defendant, who is the issuer in trust and exchange with a valuable bill of forged promise held by a person other than the issuer, is a person engaged in the same industry for several years in the same market, if the defendant, despite the fact that he is well aware of his economic condition, paid the defendant in cash not taking measures against the fact of financing the bill, the victim is at fault against the defendant.

[Reference Provisions]

Articles 763 and 396 of the Civil Act

Plaintiff, Appellant

Plaintiff 1 and three others

Defendant, appellant and appellant

Defendant 1 and one other

Judgment of the lower court

Seoul Central District Court (71 Gohap1839) in the first instance trial

Text

(1) Of the original judgment on Defendant 1, the part on which the Defendant revoked the part of the lower judgment ordering the payment of KRW 440,000 to Plaintiff 1, KRW 425,00 to Plaintiff 2, KRW 127,00 to Plaintiff 3, KRW 127,00 to Plaintiff 3, and KRW 529,000 to Plaintiff 4, and dismissed the Plaintiffs’ claim therefor.

(2) Defendant 1’s remaining appeal is dismissed.

(3) The part of the original judgment against Defendant Ko Bank Co., Ltd. was revoked and the plaintiffs' claim against Defendant is dismissed in entirety.

(4) The costs of the lawsuit between the plaintiffs and the defendant 1 and the defendant 1 are divided into ten parts. One of them is the plaintiffs' expenses, the remaining part is the defendant's expenses, and the costs of the lawsuit between the plaintiffs and the defendant 1 and the defendant 2 are all the costs of the lawsuit.

(5) Among the plaintiffs' respective funds against defendant 1 in the original judgment that was not revoked under the above Paragraph (1), each of the remaining funds that had not been sentenced to provisional execution can be provisionally executed.

Purport of claim

The Defendants jointly and severally pay 518,000 won to Plaintiff 1, 500,000 won to Plaintiff 2, 150,000 won to Plaintiff 3, and 623,000 won to Plaintiff 4.

The costs of lawsuit are assessed against the defendants and provisional execution declaration.

Purport of appeal

The defendants shall revoke the original judgment.

The plaintiffs' claims are dismissed.

The costs of lawsuit are assessed against all the plaintiffs in the first and second instances.

Reasons

(1) First, we examine the plaintiffs' claims against the defendant 1.

Since the above 1, 2, 1, 3, 1, 1, 1, 1, 1, 2, 1, 1, 1, 2, 1, 2, 1, 3, 1, 4, 1, 1, 5, 1, 6, 1, 1, 5, 1, 1, 1, 1, 3, 1, 1, 3, 1, 1, 1, 3, 1, 1, 3, 4, 1, 5, 1, 1, 6, 1, 3, 1, 6, 1, 1, 5, 1, 6, 1, 6, 1, 3, 1, 6, 1, 3, 1, 6, 1, 6, 1, 3, 3, 1, 5, 1, 1, 6, 3, 3, 1, 1, 6, 3, 1, 3, 1, 6, 1, 2, 1, 2, 3, 3, 3, 1, 1, 1,

On the other hand, if we look at the facts acknowledged above, the above plaintiffs were engaged in the same commercial business as the above plaintiffs 1 and they were well aware of the economic circumstances of the above defendants and the above defendants. Thus, if we look at the time of exchanging the above bills, we could easily prevent the above defendants from compensating for damages due to the fact that the above defendants knew about the above defendants' self-financing in the face of the bill, but it can be recognized that the above plaintiffs did not pay such attention, and that the above plaintiffs believed that they were less she did not pay attention to the above, and that the above plaintiffs suffered damages for each of the above cases. Thus, the damages for this case should be offset against the above plaintiffs' negligence in calculating the amount of damages to be compensated by the above defendants. Accordingly, the amount to be compensated by the defendant should be offset against the plaintiffs 1, 440,000 won, 425,000 won, 300 won, 127,000 won, 40,500 won, 29.

(2) Next, we examine the plaintiffs' claims against the defendant National Bank.

As seen above, the plaintiffs asserted that the non-party 1 was forged with the non-party 2's testimony under the name of the non-party 1 and delivered them to the plaintiffs. Thus, the non-party 2's testimony under the non-party 1's own name and the non-party 2's testimony under the non-party 1's own name and the non-party 2's testimony under the non-party 1's own name and the non-party 2's testimony under the non-party 1's own name and the non-party 2's testimony under the non-party 1's own name and the non-party 2's testimony under the non-party 1's own name and the non-party 2's testimony under the non-party 1's own name and the non-party 3's testimony under the non-party 1's own name and the non-party 2's testimony under the non-party 1's own name and the non-party 2's testimony under the non-party 1's own name.

(1) It is nothing more than granting a formal requirement or qualification to refer a bill or check to an exchange through a clearing-house in order to prevent a bank from entering into an agreement with a bank and from entering into an agreement with a bank an original bill or check to exchange the bill or check under the name of a person who does not have the agreement with the bank. If a bill or check is presented to another bank because it is a bill or check under the name of the person who has established the bank with the bank, it is nothing more than granting a formal requirement or qualification to refer the bill or check to exchange through a clearing-house. Thus, if the bank pays a bill or check under the name of the client under an agreement with the client and affixs a seal to the agreement, it is merely a verification that the bank has current account transaction with the bank. At this stage, it is nothing more than confirming that the holder of the bill or check has any current account transaction with the bank, such as the name and address of the issuer, or trade name of the person who enters into the agreement with the bank in question, and it is not necessary that the holder of the bill or check can not be paid more than half of the bill or check.

(ㄴ) 소외 1은 피고 1이 피고 은행의 남창동지점과 당좌거래를 개설할 당시에도 동 피고의 대리인으로서 그의 인장을 소지하고 위지점 당좌계에 혼자와서 그의 필적으로 피고 1의 서명을 하고 그가 가져온 동인의 인장을 압날하여 위 지점과 당좌를 개설하여 그후 수년 동안 위 피고 명의의 어음이나 수표는 대부분 소외 1 자신의 그 필적으로 작성하고 위 지점에 갖고 와서 협정필인을 받아 유통시켜 왔으나 그동안 아무런 사고없이 모두 정상적으로 교환 결제되어 왔으며, 더욱이 피고 1 명의의 어음이나 수표중 최초로 지급거절된 것은 원고 1이 제시한 이건 어음에서 비롯된 것인바, 그 직전에 소외 1이 이건의 경우와 같이 위 피고의 위조된 인장으로 발행한 어음들이 피고 은행의 협정필인을 받은후 유통되었다가, 위 피고의 구좌에서 아무런 말썽없이 무사히 지급된 사실까지 있으며, 또한 소외 1은 피고 1의 인장을 위조할때에 동인의 진정한 인장을 기조로하여 상이점을 쉽사리 찾아볼 수 없도록 위조한 것이어서 위조일 것이라는 전제아래 상이점을 찾기 위하여 비교 대조하면 몰라도 일견하여 상이점을 식별하기 난이한 정도였는 데다가 평소 협정필인을 받으며 항상오는 어음 명의인 본인인 피고 1의 진정한 대리인으로 어음 명의인 본인이 온것과 마찬가지의 소외 1이 종전과 마찬가지 필연적으로 작성된 어음들을 위 지점 당좌계에 제시하므로 피고 은행의 위 지점 당좌계 대리 소외 2가나 동 당좌계 행원들은 그 어음들에 찍혀있는 피고 1의 인장이 위조된 것이라는 점은 전혀 모르고 동 피고의 대리인인 소외 1의 제시하는 어음들이 동 지점과 당좌가 개설되어 있는 위 피고 명의의 진정한 어음들인 것으로 믿고 협정필인을 각 압날하여 준 사실을 인정할 수 있을 뿐, 달리 위 지점의 당좌 계원들이 소외 1의 불법행위에 통모 가공한 흔적을 찾아볼 수 없다.

(c) In light of the above facts, when Defendant Bank’s agent Nonparty 2 or 2 affixed the seal on each bill, it is entirely known that the title holder of the bill was a forgery different from the seal affixed on the other hand, and thus, it cannot be deemed that Defendant Bank’s employees engaged in collusion with the unlawful act. Further, at the time of affixing the seal on the bill, there is no obligation to refuse the seal on this case’s bill by comparing the seal affixed with the seal affixed on the note at the time of affixing the seal affixed, and therefore, there is no negligence of neglecting its duty. Accordingly, the Plaintiffs’ losses are solely attributable to Nonparty 1’s independent act, who is the employee of Defendant 1, and there is no relationship with the employees of the said branch office of Defendant Bank, and thus, Defendant Bank’s claim against Defendant Bank’s employees for tort against Defendant Bank’s employees or negligence is groundless.

(3) Thus, Defendant 1 is obligated to pay KRW 440.00, KRW 425,00 to Plaintiff 2, KRW 127,00, KRW 129,00 to Plaintiff 3, and KRW 529,00 to Plaintiff 4. Accordingly, among the plaintiffs' respective claims, the remainder of the plaintiffs' claims against Defendant 1 and the claims against Defendant National Bank of Korea Co., Ltd. against Defendant 1 are without merit. The part of the original judgment ordering payment in excess of the above recognition is unfair, and it is revoked by the defendant's appeal against this and dismissed each claim by the plaintiffs as to the revocation. Accordingly, Defendant 1's remaining appeal is without merit. Since the part against Defendant 1's National Bank of Korea among the original judgment against Defendant 1 is unfair, the part against Defendant 1's National Bank of Korea is unfair, and the appeal by the same defendant is with merit. Accordingly, all of the plaintiffs' claims against the defendant against the defendant are revoked and dismissed as prescribed in Article 96 and Article 95 of the Civil Procedure Act.

Judges Kim Hong-chul (Presiding Judge)