[2] Where an officer or employee of a securities company solicits an investment in a manner that violates the Securities and Exchange Act, but the investment result causes loss, the elements for establishing tort liability against the investor

[3] Where the victim's intentional act of an employee is recognized as a malicious or gross negligence, whether the employer's liability is recognized (negative), and the meaning of "victim's gross negligence" as an exemption from the employer's liability

[4] The case holding that where the money deposited into an account under the agreement for compensation for losses is included in the transaction again and is reflected in the account balance in the calculation of losses incurred thereafter during the period in which the securities company’s branch office continues to conduct the futures option transaction, it is reasonable to understand the payment of the above money as the amount of damages for the entire transaction, as in the case of losses and gains on the individual transaction forming part of the whole transaction, and it is not an access to separate profit and loss offsetting

1. As to the establishment of liability for damages caused by deception, determination on the first ground of appeal by the plaintiff

In order to establish liability for damages caused by deception, one of the parties to a transaction should have intentional deception, which is caused by mistake, and thus, the other party should be deemed to have not been in accordance with social norms if it had not been caused such deception.

The court below rejected Defendant 2’s request for cooperation from the Plaintiff on the ground that Defendant 2 did not have any evidence to acknowledge that Defendant 2 did not have any other part of this case’s futures options, on the ground that, at the time of concluding the instant agreement, Defendant 2 did not have any capacity to engage in futures option transactions against the Plaintiff at the time of entering into the instant agreement, in light of the circumstance and purport of the preparation of the instant agreement, which is recognized by the record, and the fact that Defendant 2 did not have any capacity to engage in futures option transactions against the Plaintiff, on the ground that it was difficult to acknowledge that Defendant 2 did not have any other evidence to acknowledge that Defendant 2 did not have any capacity to engage in futures option transactions with the Plaintiff on the ground that Defendant 2 did not have any capacity to cooperate with any specific person on the part of this case’s futures trading with the Plaintiff. However, in light of the circumstances and purport of the instant agreement acknowledged by the record, it is difficult to view that Defendant 2 did not have any capacity to receive any other evidence from the Plaintiff.

In light of the records and the above legal principles, the judgment of the court below is just, and there is no error of incomplete deliberation or misapprehension of legal principles as otherwise alleged in the ground of appeal.

2. As to the establishment of liability for damages caused by unfair solicitation, determination on the Defendants’ ground of appeal No. 1

In order to establish tort liability for investments in cases where executive officers and employees of a securities company recommended investment in a manner in violation of the Securities and Exchange Act; however, in order to establish tort liability for investments, the act of investment must be determined as an act having the responsibility for protecting customers by taking into comprehensive account transaction methods, customer’s investment situation (property status, age, level of social experience, etc.); risk of transactions; and degree of explanation on the transaction risk; and the act of soliciting investors, who lack experience, interfere with the sound formation of awareness about risks inevitably accompanying the transactional activity; or actively recommended the transaction involving excessive risk in light of customer’s investment situation (see, e.g., Supreme Court Decisions 94Da38199, Aug. 23, 1996; 97Da584777, Jun. 11, 199; 200Da30943, Apr. 27, 2001; 200Da36465, Jul. 36, 2002). 204

According to the reasoning of the judgment below and the records, the Plaintiff has been making investment in shares for a long time. However, the Plaintiff did not know about the transaction of futures options, and the Defendant 2 did not qualify as a Class 1 investment adviser for handling futures option transactions against its customers, and the Plaintiff would incur losses on the short-term stock investment after obtaining information and advice from its foreign securities companies, and the Plaintiff concluded a loss-sharing agreement prohibited under Article 52 of the Securities and Exchange Act and comprehensively delegated the Plaintiff with the securities options transaction of this case to the Plaintiff (as seen in the records, it does not appear that Defendant 2 knew that the above loss-sharing agreement is invalid because it violated the Securities and Exchange Act, which is mandatory, and thus, Defendant 2 would incur losses on the part of the Plaintiff at least 10 percent of the total amount of investment losses, depending on the fact that the Plaintiff knew that it would incur losses on the part of the Plaintiff’s securities companies, which were aware that it would incur losses on the part of the Defendant 2, which would incur losses on the part of the Plaintiff.

In the same purport, the court below is just to recognize the liability for damages caused by the improper solicitation to Defendant 2, and there is no error of incomplete deliberation or misapprehension of legal principles as otherwise alleged in the ground of appeal.

3. As to the establishment of employer liability of Defendant Company - Determination on the Defendants’ ground of appeal No. 2

Even in cases where the illegal act of an employee appears to fall within the scope of external execution of administrative affairs, if the victim himself/herself knew, or was unaware due to gross negligence, that the act of the employee does not fall under the act of execution of administrative affairs by the supervisor of the relevant administrative affairs in lieu of the employer or the employer

On the other hand, the victim's gross negligence exempted from employer's liability refers to a situation in which it is deemed reasonable to view that the other party to the transaction was aware of the fact that the employee's act was not legitimate within his authority if the other party to the transaction had paid early attention, and that it was considerably in breach of the duty of care required by the general public, and that there was no need to protect the other party from an equitable and equitable perspective (see Supreme Court Decisions 97Da19687, Mar. 27, 1998; 97Da47989, Oct. 27, 1998; 200Da59364, Jul. 12, 2002; 200Da59364, Oct. 27, 2002). According to the above legal principles and factual relations, it is difficult to recognize the Plaintiff's act of operating the investment option as the head of the branch office of the Defendant company's general authority and the Plaintiff did not know that it was an investment option in the above account.

4. As to comparative negligence, determination on the second ground of appeal by the Plaintiff

The fact-finding or determination of the rate of comparative negligence in a damage compensation case due to a tort falls under the exclusive authority of a fact-finding court unless it is deemed that it is considerably unreasonable in light of the principle of equity (see, e.g., Supreme Court Decisions 2001Da2129, Jan. 24, 2003; 2005Da57707, Feb. 10, 2006). In light of the relevant records, the fact-finding or determination of the rate of comparative negligence is not considerably unreasonable in light of the principle of equity. Thus, the plaintiff's ground of appeal on this point cannot be accepted.

5. On offsetting profit and loss - Judgment on the ground of appeal No. 3 by the Plaintiff

According to the facts established by the court below and the records, when losses were aggravated due to futures option transactions in this case, the plaintiff continued to demand 85% of the losses incurred pursuant to the agreement for compensation for losses in this case to compensate himself. Accordingly, the defendant 2, who was his own company, embezzled the stock transaction price entrusted to the defendant company and deposited KRW 50 million in the account of this case in November 1, 2001, and KRW 100 million in November 8, 2001, which is the plaintiff's children, with the fact that the plaintiff deposited in the account of this case in the name of the non-party 2, who was the plaintiff's children, and the above amount was used in total futures option transactions in the same manner as other investment funds of the plaintiff, and eventually, the plaintiff and the defendant 2 agreed to suspend the futures option transactions in this case and paid the above amount to the defendant 2,500 million won to the plaintiff by November 12, 2001.

The amount of KRW 100 million paid by Defendant 2 to the Plaintiff on November 19, 2001 in accordance with the agreement on the payment of losses on November 12, 2001, and even if the said agreement on the payment of losses is null and void because it is contrary to social order, the Plaintiff paid part of the compensation for losses after the Plaintiff decided to suspend futures option trading pursuant to the agreement with the above Defendant, so it is justifiable for the lower court to offset the amount of losses.

However, in accordance with the agreement of this case, the court below's measure of offsetting profits and losses is not acceptable for the following reasons, on the ground that up to 150 million won, which Defendant 2 deposited in the account in the name of Nonparty 2 on November 1, 2001 and November 8, 2001, which was paid by Defendant 2, the perpetrator, was part of the amount of damages paid by Defendant 2.

In other words, the gift option investment agreement of this case and the compensation agreement for losses constitute a single tort called "unfair solicitation" collectively as a whole. In such a case, the plaintiff had been in an account equivalent to the sum of principal invested in the absence of such a tort. After the termination of the tort, in other words, the difference remains only in the balance of the account finally withdrawn after the suspension of the transaction of this case with the defendant 2. Thus, the difference is the plaintiff's damages caused by the tort of this case.

Therefore, as seen earlier, Defendant 2’s deposit of KRW 150 million in the account under the loss security agreement, once again used as investment funds included in the instant transaction and reflected in the balance of account after being appropriated for losses incurred therefrom, the payment of KRW 150 million should be understood as the amount of damages for the entire transaction, as in the case of losses and gains on individual transactions constituting part of the entire transaction, and it should not be viewed as having access to separate profits and losses.

Nevertheless, the court below set off profits and losses including the above amount. Thus, the court below erred in the misapprehension of legal principles as to the calculation of damages and the offsetting of profits and losses, which affected the conclusion of the judgment. The plaintiff's ground of appeal on this point is with merit.

6. As to the adequacy of the assessment method of damages - Determination as to the Plaintiff’s ground of appeal No. 4

A. Even if a customer opened a consignment account with a securities company, in order to conduct futures option trading, it is necessary to separately open a futures option account, and both accounts are able to freely transfer and withdraw in connection with each other, as well as the instant agreement (Evidence A (Evidence A) stipulates that both a consignment account and a futures option account are subject to an agreement. As such, in calculating the instant amount of damages, since the amount deposited and withdrawn in the connection account is irrelevant to calculating the amount of damages, the amount actually deposited and withdrawn from the two accounts should be calculated by integrating the amount actually deposited in the two accounts, excluding this, from the amount actually deposited in the two accounts.

Unlike this, the court below erred by misapprehending the legal principles on the calculation of damages or misunderstanding the fact that the court below calculated the amount of damages by calculating only the amount of money deposited and withdrawn from the futures option account without considering the entrusted account.

B. In addition, according to the records, when profits accrue at the time of the agreement of this case, 85% of them shall be deducted from the total amount invested by Defendant 2, and 15% shall be deducted from Defendant 2, and Defendant 2, after the agreement formation formation, he shall make profits of KRW 134,626,712, which is 85% of them, and Defendant 2 shall receive dividends of KRW 14,432,795, which is 15% of them, and Defendant 2 shall make profits of KRW 20,194,00, which is 15% of the remainder. Thus, in calculating the actual amount of damages suffered by the Plaintiff due to Defendant 2’s improper solicitation of this case, the court below erred by misapprehending the legal principles as to the amount of damages, or by misapprehending the legal principles as to the amount of damages.

C. Meanwhile, the argument in the grounds of appeal that the plaintiff should return 50 million won, which the plaintiff kept as collateral for dividend, to Defendant 2 at the time of the agreement in this case, as unjust enrichment is asserted by the court of final appeal that the plaintiff did not assert even before the court of final appeal. Thus, the claim for damages or agreed amount of damages as originally claimed differs from the claim for damages or agreed amount of damages itself,

7. Conclusion

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for further proceedings consistent with this Opinion, as it is so decided as per Disposition by the assent of all Justices who reviewed the appeal.

Justices Kim Young-ran (Presiding Justice)