[2] The method of determining whether an auditor of a credit union was grossly negligent in neglecting his/her duties in connection with the settlement of accounts, etc., and whether the auditor's status can be exempted from his/her duty of care as an auditor on the grounds that the status of the auditor is an emergency position or an

[3] Details of the business judgment rule that a director of a financial institution is recognized to perform the loan-related duties

[2] Whether an auditor of a credit union was grossly negligent in neglecting his/her duties in relation to the settlement of accounts by division, etc. shall be determined by comprehensively taking into account various matters such as the contents of the settlement of accounts by division, the degree and method of division, the degree and possibility of detection of exposure, and the actual status of the performance of duties. If the auditor knew of the act of settlement of accounts by division, etc. or he/she was able to know if he/she knew of the act of settlement of accounts by division, etc., or he/she paid a little attention due to clear settlement of accounts or accounting-related documents of the union, he/she could have been aware of such act, but if he/she was grossly negligent, he/she could have neglected his/her duties as an auditor. However, even if

[3] If a director of a financial institution fully collects, investigates, and examines necessary information in performing his/her loan-related duties, and then makes a business judgment in accordance with the trust and good faith of the financial institution, based on which it is reasonably reliable that the contents are consistent with the maximum interest of the financial institution, and thus, within the scope of ordinary selection as a director due to a considerable unreasonable reason, the director cannot be held liable for damages to the company even if the result of the ex post facto loss was inflicted. However, if a director of a financial institution unilaterally performs his/her duties under the general and abstract expectation that it would be more beneficial to the company, rather than performing his/her duties through this process, and causes losses to the company, he/she shall not be deemed to have made a business judgment in accordance with the good faith and good faith. Thus, the act of the director shall not be deemed to have been within the discretionary scope of permissible business judgment.

1. Judgment on the Plaintiff’s grounds of appeal

A. On the third ground for appeal

Article 33(2) of the former Credit Unions Act (amended by Act No. 6957 of Jul. 30, 2003; hereinafter “Act”) provides that “An executive officer shall be jointly and severally liable for damages inflicted upon a union or any other person by intention or gross negligence (in the case of an executive officer intentionally or negligently), while performing his/her duties.” Article 33(4) of the Act provides that “When the board of directors inflicts damages on a union or any other person intentionally or by gross negligence, the executive officer who attends the board of directors related to such intentional or gross negligence shall be jointly and severally liable for damages: Provided, That this shall not apply to the executive officer who expresses his/her dissenting opinion at the meeting (Article 27(1) of the Act), although the auditor is included in the board of directors, the board of directors of the union shall convene with attendance of a majority of the directors, and the resolution of the board of directors shall be made with the consent of the majority of the present directors (Article 34(1) and Article 36(2) of the Act) of the Act).

In the same purport, the court below is just in rejecting the plaintiff's assertion that the auditor of the ○○ Credit Cooperatives is liable for damages under Article 33 (4) of the Act, and there is no error in the misapprehension of legal principles as to Article 33 (4) of the Act as otherwise alleged in the ground of appeal.

B. On the first, second, and fourth grounds

Examining the lower court’s fact-finding in light of the record that it is difficult to view that Defendant 10 and Defendant 11 knew or could have easily known the illegality of the commercial loan of this case during the process of the enactment and enforcement of the Commercial Loan Implementation Rule, the lower court cannot be deemed to have recognized facts in violation of logical and empirical rules and beyond the bounds of the principle of free evaluation of evidence, and thus, the allegation in the grounds of appeal disputing this cannot

In addition, as decided by the court below, there are no evidence to view that Defendant 10 and 11 were notified of the results of the comprehensive inspection or notified of the details of the comprehensive inspection or of the comprehensive inspection; since ○ Credit Union's auditor 10 and 11's involvement in the process of the establishment of the Commercial Loan Implementation Detailed Regulations, the possibility of recognizing its illegality and the possibility of preventing the decision on the establishment; and even if the National Credit Union Federation of Korea conducted a comprehensive inspection against ○ Credit Union during July 2002 and August 2002 and notified the results of the comprehensive inspection to ○ Credit Union, it is hard to view that there was no error in the misapprehension of legal principles as to the liability for damages caused to ○ Credit Union's gross negligence or damage to ○ Credit Union as a result of the implementation of the comprehensive inspection or the comprehensive inspection from November 202, following the notification of the results of the comprehensive inspection, it is difficult to view that the judgment below erred in the misapprehension of legal principles and the auditor's liability for damages as a result of the comprehensive inspection or gross negligence.

C. On the fifth ground for appeal

Whether an auditor of a credit union was grossly negligent in neglecting his/her duties in relation to the settlement of accounts, etc. shall be determined by comprehensively taking into account various matters, such as the contents of the division accounting, the degree and method of division, the degree and possibility of exposure, the degree and possibility of detection of the disclosure, and the actual status of the duties. If the auditor knew of the act of division settlement, etc. or he/she was able to know it if he/she was aware of the act of division settlement, etc. or he/she exercised due care on the union’s account books or accounting-related documents, but if he/she was grossly negligent in neglecting his/her duties, he/she shall be deemed to have been negligent in neglecting his/her duties as an auditor. Even if the auditor’s status was not in the form of non-standing and unpaid honorary post, such circumstance alone shall not be exempt from the duty of care (see, e.g., Supreme Court Decisions 2003Da18838, Mar. 25, 2004; 205Da222879

According to the reasoning of the lower judgment and the evidence admitted by the lower court, Defendant 10 served as the auditor of the ○ Credit Cooperatives from December 8, 1991 to November 3, 2002; Defendant 10, the accounting rules of the ○ Credit Cooperatives, provide that allowances for bad debts shall be accumulated by compensating for bad debts for all kinds of claims and shall maintain at least 1% of the balance of loans as at the end of the fiscal year; and at the end of the fiscal year, computing interest accrued and the total amount shall be corrected at the expense; and the settlement statements of accounts in 197 and the settlement statements in 1998, signed and sealed by the above Defendant, are bound with unpaid interest and the correction statement; each unpaid interest and the correction statement are written as only partially revised interest and the amount of unpaid interest and the amount of unpaid interest and the amount of unpaid interest and the amount of the settlement statement are sufficiently stated as each of the correction rate; Defendant 10, who received an accounting report from an employee in charge of accounting and notified it to the board of directors.

Therefore, in order to determine whether Defendant 10 was grossly negligent in performing the business of auditing the settlement statements of the ○ Credit Union, the court below should have determined whether the above Defendant was grossly negligent after examining whether Defendant 10 actually performed the audit of the settlement of accounts in relation to the division of accounts, whether the unpaid interest was excessively corrected, the degree of exposure to the shortage of the bad debts fund, and the possibility of detection thereof. However, the court below determined otherwise that Defendant 10 was not grossly negligent on the ground that the above Defendant was unable to easily grasp the existence of the division of accounts due to the fact that it was not due to the fact that Defendant 10’s personal circumstances or that it was irrelevant to the actual audit. In so doing, the court below erred by misapprehending the legal principles on the responsibility of the auditor of the credit union and

The grounds of appeal pointing this out are with merit.

2. Determination on the grounds of appeal by Defendant 1, Nonparty 1, Defendant 6, Defendant 7, 8, 12, and 13

A. On the first ground for appeal

(1) If a director of a financial institution sufficiently collects, investigates, and examines necessary information in performing his/her loan-related duties, and then makes a reasonable decision on management in accordance with the financial institution’s maximum interest and good faith, and as a result, it is within the scope of ordinary selection as a director because the contents are not considerably unreasonable, even if the result was incurred later, the director cannot be held liable for damages to the company. However, if a director of a financial institution unilaterally performs his/her duties under a general and abstract expectation that it would merely benefit in the company’s business, rather than performing his/her duties through this process, and causes losses to the company, he/she cannot be deemed to have made a reasonable decision on management in accordance with the good faith and good faith. Thus, the act of the director cannot be deemed to be within the discretionary scope of the business judgment (see, e.g., Supreme Court Decisions 2006Da33609, Jul. 26, 2007; 203Da333636, Oct. 11, 2007).

According to the evidence adopted by the court below, unlike the credit operating manual and the credit regulations which were enforced at the time, the loan regulations in this case allow loan to employees engaged in the main business who were prohibited, so that the loan to be used as a security loan can be treated as a security loan by adjusting the credit limit rapidly, and the loan can be made by using a security-value evaluation and a business license right which is difficult to realize after the fact, and the loan can be made by easing the qualification requirements of joint and several sureties and abolish the restriction on the frequency of guarantee, so that the loan can be made possible only by mutual joint and several sureties of employees and a business proprietor's joint and several sureties, and the loan can be made without examining the previous credit review procedures. As a result, the risk of non-performing loans increases remarkably, thereby causing outstanding claims exceeding the total of 12.4 billion won as of September 30, 2005.

In addition to these circumstances, in light of the reasoning of the judgment below and the contents of the rules on the implementation of the commercial loan of this case, which can be known by the evidence adopted by the court below, and the actual loan situation, the court below held that the court below is liable for damages on the grounds of the following circumstances: (a) there was a restriction on commercial loan to the main employees under the credit-related regulations; (b) defendant 12, the chief director of the board of directors in the process of the establishment of the detailed rules on the implementation of the commercial loan of this case; (c) the deceased, the deceased, the 6,7, and the 8's involvement degree and role as well as the possibility of awareness of illegality; and (d) the other Defendants and the deceased's gross negligence caused damage to ○ Credit Union due to ratification, resolution, and implementation of the commercial loan of this case; and (e) further, (e) there was no error in the misapprehension of the legal principles as to the requirements for the establishment of the commercial loan of this case and the judgment of the deceased's most reasonable information in the circumstances related to the loan of this case.

(2) In order to calculate the amount of damages, in order to allow the offsetting of profits and losses, the victim not only obtained new profits due to the act causing the liability for damages, but also the profits must be commensurate with the scope of damages to be compensated by the obligor (see Supreme Court Decision 2005Da3229, Nov. 16, 2007).

In light of the records, there is no evidence to prove that the ○ Credit Union has received the full amount of principal and interest of a loan and raised profits as much as possible through the implementation of a commercial loan in accordance with the rules on the implementation of the commercial loan of this case, and it cannot be viewed that such profits are corresponding to the scope of losses of this case arising from another commercial loan that was made separately from the profits. Thus, the argument in the grounds of appeal that the above profits should be deducted from the amount of damages of this case cannot be accepted.

B. On the second to fifth grounds

According to the reasoning of the judgment below, the court below acknowledged the facts as stated in its reasoning after comprehensively taking account of the adopted evidence, and acknowledged the facts as stated in its reasoning. The court below acknowledged the liability for damages arising from Defendant 1 and Defendant 12’s loan exceeding the lending limit, joint and several sureties’s non-performing loans, credit unfair treatment and installment settlement for the same person, on account of the following circumstances: (a) the number of years of service, duties and roles, actual loan and settlement performance of Defendant 1 and Defendant 12, the president of the ○○ Credit Cooperatives, and the amount of security value compared to each loan amount at the time of lending exceeding the lending limit to the same person and the amount of each loan application for the non-performing loans as joint and several sureties;

In light of the records, the above judgment of the court below is just and acceptable, and there is no error in the misapprehension of legal principles as to the requirements for the establishment of liability of executive officers and employees of credit unions including intentional, negligent, and gross negligence as otherwise alleged in the ground of appeal

C. On the sixth ground for appeal

Unlike the former Act on the Guarantee of Personal Identity (amended by Act No. 6592 of Jan. 14, 2002; hereinafter the same), Article 6(1) of the current Act on the Guarantee of Personal Identity (amended by Act No. 6592 of Jan. 14, 2002) provides that "the fidelity guarantor shall be liable to compensate for the damage caused by an intentional or gross negligence of an employee." Paragraph (1) of the Addenda provides that "this Act shall enter into force on the date of its promulgation," and Paragraph (2) of the Addenda provides that "this Act shall apply from the initial agreement or renewed after this Act enters into force."

According to the records, Defendant 13 entered into a contract of fidelity guarantee with ○ Credit Union on August 7, 1994 with ○ Credit Union for the period of 12 years and 3 years, and renewed it. At the end, Defendant 13 entered into a contract of fidelity guarantee with ○ Credit Union until August 7, 2004. Thus, as to Defendant 13 who entered into a contract of fidelity guarantee with ○ Credit Union prior to the enactment and enforcement of the current Act of Fidelity Guarantee, the same Act does not apply in accordance with Article 2 of the Addenda to the current Act of Fidelity Guarantee, and the former Act of Fidelity Guarantee applies as it is.

In the same purport, the court below is just in recognizing Defendant 13's liability for the damage suffered by Defendant 12's ○ Credit Union due to Defendant 12's negligence under the former Act on the Guarantee of Personal Identity, and there is no violation of law such as misunderstanding of legal principles as to the requirements for establishment of liability for fidelity guarantee

D. On the seventh ground for appeal

According to Article 4 subparagraph 1 and Article 5 of the former Act on the Guarantee of Personal Identity, if an employee is in bad faith or in bad faith and thereby causes the responsibility of the fidelity guarantor, the employer shall notify the fidelity guarantor without delay, and the fidelity guarantor shall terminate the contract when he receives such notification. In the case of a corporation, only when the representative of the corporation knew that there is a private life in bad faith in the course of performing his duties and that there is a concern about causing the fidelity guarantor's liability, it shall be deemed that the corporation did not know such fact (see, e.g., Supreme Court Decisions 9Da28340, Aug. 24, 1999; 2007Da2555, May 31, 2007).

In light of the above legal principles, the judgment of the court below that the ○ Credit Union cannot be deemed to have known that Defendant 12, who is an electrical secretary of the ○ Credit Union, committed an act in bad faith, and that the ○ Credit Union was not aware of such private information. In addition, even if Defendant 1, who is the chief director of the ○ Credit Union, approved Defendant 1’s loan in excess of the limit on loans to the same person that was made by Defendant 12, who was an electrical secretary around 1995, the reasoning of the judgment below cannot be readily determined that Defendant 1 himself was aware that he would have suffered damages due to his act at that time, and there is no other evidence to support this otherwise. Accordingly, it is difficult to see that Defendant 1 caused damages to the ○ Credit Union and caused damages to the ○○ Credit Union and thereby caused the fiduciary liability to Defendant 12. Accordingly, this part of the grounds for appeal cannot be accepted.

3. As to the appeal by Defendant 9

Defendant 9 did not state the grounds of appeal in the petition of appeal, and did not submit the appellate brief within the statutory period.

4. Conclusion

Therefore, the part of the judgment of the court below against the plaintiff regarding the liability for damages caused by the window dressing settlement and unfair distribution against the defendant 10 is reversed, and that part of the case is remanded to the court below. The plaintiff's remaining appeal against the defendant 10 and the appeal against the defendant 11, and all appeals against the defendant 6, 7, 8, 9, 12, and 13 are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Hyun-chul (Presiding Justice)