[2] The method of determining whether an auditor of a credit union was grossly negligent in neglecting his/her duties in relation to the settlement of accounts for division

[3] Where the representative of a credit union took part in an employee's occupational misconduct and committed a joint tort against a legal entity, the starting point of the short-term extinctive prescription period for the claim for damages against an employee under

1. Appeal against Defendant 1 and Defendant 2

A. The judgment of the court below

According to the reasoning of the judgment below, the court below held that the plaintiff, a trustee in bankruptcy of the long-term credit cooperative (hereinafter "long-term credit cooperative"), sought compensation for damages caused to the long-term credit cooperative due to illegal or non-performance of obligation against the defendant 1 and the defendant 2, who was a trustee in bankruptcy of the long-term credit cooperative (hereinafter "long-term credit cooperative"), and there is no evidence to acknowledge that there was a cause attributable to intentional or gross negligence. Rather, as recognized by the adopted evidence, the above defendants were engaged in a life-long business while operating multi-faces as a person with no professional knowledge in finance, and most of the employees who were in charge of the long-term credit cooperative accounting work are responsible for the settlement of balance sheets, surplus appropriation, etc.; the long-term credit cooperative chairperson, directors, etc. received reports from the working-level director for the settlement of accounts through the board of directors, etc. for the settlement of accounts; while the above defendants, who were auditors, did not know the illegality of the settlement plan; and even if the result of audit of the above accounts cannot be easily notified by the plaintiff's.

B. Judgment of the Supreme Court

However, we cannot agree with the above decision of the court below for the following reasons.

Article 30 of the former Credit Union Act (amended by Act No. 5506 of Jan. 13, 1998) and Article 47 of the Articles of Incorporation of the Credit Union shall audit the status of operation, property status, books, documents, etc. of the union at least once every quarter. The quarterly audit report shall be submitted to the board of directors, and the annual report which has a comprehensive audit report shall be submitted to the board of directors, and the annual report which has a comprehensive audit report shall verify the deposits passbook and other certificates of the union and the books or records of the union without any prior notice at least once every year. Article 5 (2) of the Articles of Incorporation of the Credit Union provides that an executive shall be solely or jointly liable for damages incurred by the union or other persons intentionally or by gross negligence when he/she performs his/her duties. Thus, in accordance with the above Acts and subordinate statutes and the articles of association of the case, if an auditor of the credit union is liable for damages against the union with regard to the division settlement of accounts, etc., he/she shall be 205 years or more.

However, the court below held that Defendant 1 and Defendant 2 were exempted from liability, and held that the above Defendants did not have expertise as a credit union auditor, most of the employees processed the affairs of long-term credit consultation and prepared the balance sheet and surplus appropriation data, and the board of directors accepted explanation from the working-level officer and approved the division settlement by the board of directors, while the above Defendants, who were auditors, did not attend the board of directors and did not receive any report as to the above Defendants, may not be a ground for restricting the above Defendants’ liability, and it cannot be a ground for exempting the Defendants from their duty of care as seen earlier under the statutes and the articles of incorporation (see, e.g., Supreme Court Decision 2005Da22879, Sept. 14, 2006).

Whether there was gross negligence on the above defendants should be determined not by the personal circumstances of the above defendants, but by examining the contents of the window dressing accounting in question, the degree and method of window dressing, the degree and possibility of exposure and detection thereof, and whether the audit was actually performed, based on the circumstances revealed by them.

Nevertheless, without examining the substance of the window dressing accounting, the court below held that the above Defendants did not have gross negligence in the performance of duties in relation to the window dressing settlement on the ground that it could not easily find that the window dressing settlement was conducted, even if they reviewed the account settlement closely on the sole basis of the personal circumstances of the above Defendants without examining the substance of the window dressing accounting. In so doing, the court below erred by misapprehending the legal principles on the responsibility and gross negligence of the auditor of the credit union, or by failing to exhaust all necessary deliberations,

2. Appeal against the Defendant (Appointed Party; hereinafter “Defendant”) No. 3

A. The judgment of the court below

According to the reasoning of the judgment below, the court below acknowledged the facts as stated in its reasoning, and held that the deceased non-party 1 was liable for damages due to the non-party 1's non-party 3's non-party 1's non-party 1's non-party 2's non-party 1's non-party 1's non-party 3's non-party 1's non-party 1's non-party 3's non-party 1's non-party 1's non-party 6's non-party 1's non-party 1's non-party 1's non-party 3's non-party 1's non-party 1's non-party 1's non-party 1's non-party 3's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1'the defendant 1's non-party 1's non-party 1'6'.

B. Judgment of the Supreme Court

However, we cannot agree with the above decision of the court below for the following reasons.

Even if the court below's decision that the compensation guidelines of this case were applied to the deceased non-party 1's occupational violation committed before the enforcement of the compensation guidelines of this case, the "date on which the plaintiff knew of the accident and the actor" of Article 16 (1) of the Civil Code refers to the date when the ordinary representative is known in the case of the corporation, but if the representative of the corporation is involved in the act and joint tort against the corporation, it is difficult to expect the corporation and its representative to exercise the right to claim compensation for damages due to the fact, and it is generally denied the power of representation. Thus, it is not sufficient to say that the representative has the right to claim compensation for damages due to the accident and the offender, and it is reasonable to interpret that the short-term statute of limitations of prescription of this case should be applied to the non-party 1's executive officer or employee with the authority to properly preserve the corporation's interest, and it is also reasonable that the non-party 1's representative with the right to claim compensation for damages should not be seen as the one's own right to claim compensation for damages as a short-term unlawful act.

Nevertheless, without examining the above circumstances, the short-term prescription period under Article 16 (1) of the Compensation Guidelines of this case is deemed to have run on the ground that the National Federation of Korea, without examining the above circumstances, was inspected on March 4, 1996, and that the president of the Bank Supervision Board of the Bank Supervision conducted regular inspections from June 2, 1997 to June 7, 197, and that the result of such inspection was notified to the GIC, and that the short-term prescription period under Article 16 (1) of the Compensation Guidelines of this case is to run on the ground that the short-term prescription period under the same provision or the principle of good faith has expired due to the lapse of the three-year short-term prescription period under the above provision of the Compensation Guidelines of this case due to the fact that the former Non-Party 1's occupational misconduct was enforced after the latter's occupational misconduct. In so determining, the judgment below erred by misapprehending the legal principles on the short-term prescription period or the principle of good faith, or by failing to exhaust all necessary deliberations, thereby affecting the conclusion.

3. Conclusion

Therefore, the judgment below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Sung-tae (Presiding Justice)