[손해배상청구사건][고집1972민(2),475]
Scope of changes in the duties of the fidelity guarantor to be notified by the employer;
In the event that the identity of the principal at the time of the fidelity guarantee was an intervention in the bank branch and an ordinary deposit account, and later the transfer was made to the trust business, the trust business, and the current deposit account, it is merely a change in the position expected as an ordinary promotion, and thus, the fidelity guarantor is not exempted from liability.
Articles 4 and 5 of the Fidelity Guarantee Act
Supreme Court Decision 4294Hun-Ba544 delivered on February 28, 1962 (Supreme Court Decision 7237 delivered on July 7, 1967, Supreme Court Decision 100Do158 delivered on July 15, 199)
Korea Trust Bank Co., Ltd.
Defendant 1 and two others
Daegu District Court of the first instance (70 Gohap4216)
Among the parts against Defendant 1 and 2 in the disposition of the original judgment, the part against which the lower court ordered self-sufficiency shall be revoked and the plaintiff's claim concerning that part shall be dismissed.
Defendant 1 and 2 jointly pay 300,000 won to the Plaintiff.
All of Defendant 1 and 2’s remaining appeals and Plaintiff’s appeals are dismissed.
Of the costs of lawsuit, the part arising between the plaintiff and the defendant 1 and 2 shall be five equal parts and one shall be borne by the said defendants, and the remainder shall be borne by the plaintiff, and the part arising between the plaintiff and the defendant 3 shall be three equal parts, and one shall be borne by the plaintiff, and the remainder shall be borne by the said defendant.
The Defendants jointly and severally pay 31,407 won to the Plaintiff.
Litigation costs shall be borne by the defendant.
A provisional execution may be carried out only under paragraph (1).
Defendant 1 and 2’s purport of appeal
The part of the original judgment against the said Defendants shall be revoked.
The plaintiff's claim is dismissed.
All the costs of lawsuit shall be borne by the plaintiff in the first and second instances.
The part against the plaintiff in the original judgment shall be revoked.
Defendant et al. shall jointly and severally pay KRW 2,665,707 to the Plaintiff.
Litigation costs shall be borne by the defendants.
On February 18, 1970, Defendant 3 joined the Daegu Branch of Plaintiff Bank from the time to the end of April of the same year, and was in charge of the conflict of interest and general deposit affairs of Plaintiff Bank, and thereafter, he was in charge of the deposit affairs of the trust community up to the middle of August of the same year, and thereafter, until October 23 of the same year, there is no dispute between the parties.
In full view of the contents of Gap evidence Nos. 1-1-4, 2-1 through 3 of the evidence Nos. 1-2, 7 through 27, and the whole purport of the testimony (excluding the part of non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 2's non-party 2's non-party 3's non-party 3's non-party 1's non-party 2's non-party 1's non-party 1's non-party 2's non-party 3's non-party 1's non-party 2's counter-party 27'
(1) On July 20, 1970, the Plaintiff bank and Nonparty 2, who is a trust transaction for accumulation purpose with the Plaintiff bank, receive KRW 23,000 from Nonparty 2, and enter the amount as deposit only in the deposit passbook and embezzled it without taking the deposit procedure.
(2) The Plaintiff bank received deposits of KRW 400,000 on September 8, 1970; KRW 50,000 on September 28, 197; KRW 20,000 on September 29, 29 of the same year; and KRW 470,000 on September 29 of the same year; and embezzled KRW 250,000 on the same method without undergoing deposit procedures.
(3) The Plaintiff bank received KRW 80,000 from Nonparty 4, the trader of the current account of the Bank, which was deposited at KRW 80,000 on October 20, 1970, and then embezzled it without entering it in the current account ledger, and without entering it in the current account ledger.
(4) The Plaintiff bank received deposits of KRW 1,050,000 from Nonparty 5, the trader of the current account from Nonparty 5, from September 26, 1970 to October 22 of the same year, and embezzled KRW 200,000 among them in the above manner.
(5) The Plaintiff bank received deposits of KRW 2,610,000 from Nonparty 6, the trader of the current account of the Plaintiff bank, four times from September 12, 1970 to October 20 of the same year, and embezzled KRW 30,000 among them in the above manner.
(6) From August 26, 1970 to October 20 of the same year, Plaintiff Bank’s current account of KRW 2,560,000, which was received from Nonparty 7, the trader of the current account, five times from August 26, 1970, and embezzled KRW 260,000 among them by the same method.
(7) On October 17, 1970, Nonparty 8’s instructions, 500,000 won borrowed by the Dong from Nonparty 9, who traded the current account with the Plaintiff, was prepared and issued a false account deposit slip as if the Dong deposited the current account into the account on October 17, 1970, and the Plaintiff may recognize the fact that the Plaintiff paid all the above amount that Defendant 3 created due to the above illegal act to the above victims, and there is no evidence to change the above recognition.
The plaintiff's attorney, in collusion with the non-party 10, set up a false deposit table with the non-party 1, who is the party account of the plaintiff bank, to deposit 2,00,000 won in his own account and present it to the non-party 11, who is the party account of the plaintiff bank, and then received one copy of the cash table from the non-party 11's account on September 21, 1970 and used 2,000,000 won in exchange for it. Thus, the non-party 1's testimony (excluding the above part accepted) which seems to correspond to it cannot be trusted in light of the following evidence, and according to the contents of each evidence set forth above, according to the non-party 7 through 16, the non-party 10, who was the party of the plaintiff bank, was committed solely by the non-party 3, who was the vice-party 10, and the defendant 3 did not participate. The plaintiff's claim cannot be accepted.
Defendant 1 and 2 Attorney
(1) Defendant 3, the identity of the Defendants, at the time of becoming the fidelity guarantor of Defendant 3, was merely an interference of the Daegu Branch of the Plaintiff Bank and an ordinary bank member, and thereafter, was promoted to the public in April 1 of the same year, and was transferred to the public in May of the same year, and to the public in August of the same year, respectively. In such a case, the Plaintiff did not notify the Defendants, the fidelity guarantor, of the change in the duties and liability of the above employees, despite the fact that there was a duty of notification under Article 4(2) of the Fidelity Guarantee Act, it is difficult to view that the Defendants did not notify the Defendants of the change in the duties and liability of the above employees. Accordingly, according to the above evidence, it is difficult to determine that Defendant 3 was responsible for the deposit of the Plaintiff’s ordinary bank member at the time of entry in the Plaintiff Bank, as well as for the change in the status of the ordinary deposit or the change in the status of the trust account, and thus, the Defendants could not be seen as a significant change in the status of the Defendants.
(2) In addition, since Defendant 3’s act of embezzlement was conducted inevitably by his superior order, there was no intentional or gross negligence with Defendant 3, and therefore, the said Defendants are not responsible, so it cannot be acknowledged that Defendant 3 inevitably committed a tort due to his superior order even with the transfer certificate of the Defendants, and even with the transfer certificate of the Defendants, Defendant 3 cannot be deemed to have committed a tort. Even if the order was issued by his superior order, it cannot be said that the illegality of Defendant 3 cannot be avoided. Thus, the above assertion is without merit.
(3) In addition, even though the plaintiff bank should handle only the trust business, the plaintiff bank's attorney asserted that the defendant Kim Yong-Nam could not be held responsible for the damage caused by having it handle general deposits and current accounts, so the plaintiff bank is not only the trust business as a financial institution, but also the plaintiff bank can handle general deposits or current accounts, so the above argument is groundless.
Therefore, Defendant 1 and 2 are jointly and severally liable for damages of KRW 11,693 as the sum of the damages suffered by the Plaintiff at KRW 1,343,100,00, and KRW 11,331.407 as the amount paid by Defendant 3. In full view of the above evidence and the result of Defendant 3’s questioning at the lower court, although Defendant 3’s tort was committed several times for several months, the Plaintiff’s negligence in monitoring and supervising the Plaintiff’s employer; the Plaintiff bank did not discover unlawful acts more than three times a month during the period of Defendant 3’s tort; the Plaintiff bank’s negligence on the part of the Plaintiff’s 1,343,10,00 won; the Plaintiff’s claim for damages as above was inevitable due to Nonparty 8’s instruction on the part of the Plaintiff Bank, which was the representative of the Plaintiff Bank at KRW 3,500,000,000, KRW 300,000, KRW 150,000.
Therefore, the plaintiff's principal claim against the defendant 3 shall be accepted to the extent that the defendant 1,1331,407 won and the defendant 1 and 2 shall be jointly and severally entitled to the payment of 300,000 won. The remaining claims shall be dismissed. The part against the defendant 1 and 2 ordering payment in excess of the above scope of recognition shall be unfair, and the plaintiff's claim against the defendant 1 and 2 shall be dismissed. The remaining appeals against the defendant 1 and 2 and the plaintiff's appeal shall be dismissed without merit, and the costs of the lawsuit shall be borne as per the disposition by applying Articles 96, 93, 92, and 89 of the Civil Procedure Act.
Judges Lee Jung-gu (Presiding Judge)