[손해배상(기)][공1993.11.1.(955),2768]
The case holding that the failure of the bank staff to inform the holder of a forged bill of the forgery does not constitute a tort.
In a case where a bank employee who received a presentation for payment of a forged bill does not honor the bill and pays the bill to the holder by his/her current account at the request of a forged customer, the bank employee cannot be deemed to have the duty to inform that the holder would incur losses by acquiring the same kind of forged bill thereafter and that the bill has been forged. In a case where the above bank employee makes a payment with forged bill changes, it is difficult to view that the forged bank employee was or could have predicted that he/she would obtain money from the holder by using other forged bill, etc., and there is no proximate causal relation between the above bank employee's act of lending the forged bill as security and the damages which the holder has failed to recover by making use of forged bill. Thus, the above bank employee's act cannot be deemed to constitute tort against the holder.
Article 756 of the Civil Act
Dongi Mutual Savings and Finance Company (Attorney Mail-young, Counsel for defendant-appellee)
[Defendant-Appellant] Industrial Bank of Korea
Busan High Court Decision 92Na695 delivered on February 10, 1993
The appeal is dismissed.
The costs of appeal are assessed against the plaintiff.
We examine the grounds of appeal.
In light of the records, the fact-finding by the court below is acceptable, and there is no error in the misapprehension of the rules of evidence or the rules of evidence, and there is no error in the misapprehension of the reasoning or the lack of reasons, and there is no omission of evidence determination affecting the conclusion of the judgment, since the documentary evidence of the court below cannot be deemed sufficient evidence to reverse the fact-finding by the court below.
In addition, if the facts are as acknowledged by the court below, it cannot be said that the non-party 1 and the non-party 2, who is the employee of the defendant bank, who was presented six payment of the forged bill in question, did not honor the bill and paid the bill to the holder by his current account at the request of the forged customer, the holder is obligated to inform the holder of the fact that the bill was forged. Under the facts of this case, it is difficult to view that the non-party 1 and the non-party 2 had predicted or could have predicted that the non-party 3, who was the forged bill would receive the money from the plaintiff's treasury using other forged bill, etc., and then, the non-party 1 and the non-party 2 could not have any proximate causal relationship between the above non-party 3 and the loss due to the payment of the forged bill and the non-party 3 by taking advantage of the forged bill, etc., and it cannot be said that the court below erred in the misapprehension of legal principles as to the tort against the plaintiff 1 et al.
However, the judgment of the court below is not unlawful for the same reason as the theory, considering the rules of the Busan Bills of Exchange and Promissory Notes, and the above non-party 1 and non-party 2 did not comply with the above rules at the time and paid the amount to the holder of the bill of exchange with their own account at the time of receiving the request of the customer who was the forged, the payment of the bill was more beneficial to the holder. Thus, under the facts of this case, it cannot be said that the above non-party 1 et al. was intentional or negligent as an element of tort, and there was no criminal judgment of the theory of lawsuit. Accordingly, this is also the same.
On the second ground for appeal
Since the judgment of the court below that the defendant's liability should be exempted on the ground of the plaintiff's negligence is added, it is not affected by the result of this case as to whether this part of the judgment of the court below is justified or not.
Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.
Justices Final Young-young (Presiding Justice)