[손해배상(기)][공2003.6.15.(180),1320]
[1] Whether the former Act on the Guarantee of Personal Identity may apply mutatis mutandis to a contract for the guarantee of personal identity with the content that the president of the cooperative compensates the guarantor for the loss incurred during his/her
[2] Whether a corporation's duty to notify under Article 4 (1) of the former Guarantee of Personal Identity Act may be deemed to have occurred when the representative becomes aware of his/her illegal act in the guarantee of personal identity with the principal as the principal guarantor (affirmative)
[3] Requirements to exempt the fidelity guarantor from liability due to the employer's breach of duty to notify
[1] Article 1 of the former Act on the Guarantee of Personal Identity (amended by Act No. 6592 of Jan. 14, 2002) provides that a contract for the guarantee of personal identity refers to a contract under which the employer agrees to compensate for the damages suffered by an employee's act. Thus, the above Act cannot be applied immediately to a contract for the guarantee of personal identity with the intent of compensating for the damages suffered by a credit union president while in office. However, even if the president of a credit union is not an employee based on an employment contract, it is similar to an employee in that it continuously performs business, etc. for a certain period of time, and is receiving the fixed remuneration, even if he is not an employee based on an employment contract. In light of the guarantor's position, it is similar to a contract for the guarantee of personal identity for an employee in terms of the purpose and content of the contract. Thus, the contract for the guarantee of personal
[2] Even if a private person is found to be jointly with the representative of a juristic person, if the representative of a juristic person knew that it would cause the liability of the fidelity guarantor due to the private negligence committed in the course of his duties, the juristic person should immediately be aware of such fact. Thus, in light of the legal principles that the notification duty under Article 4 subparagraph 1 of the former Act on the Guarantee of Personal Identity (amended by Act No. 6592 of Jan. 14, 2002) has occurred to the juristic person, it shall not be deemed that the juristic person should not be deemed to have known of the fact even if the representative has been aware of his tort, and in this case, it shall not be interpreted that the juristic person's notification duty has occurred only when another officer or employee who is not the representative becomes aware of the tort.
[3] Where an employer has a duty of notification under Article 4 of the former Act on the Guarantee of Personal Identity (amended by Act No. 6592 of Jan. 14, 2002), the employer is not exempt from the responsibility of the fidelity guarantor merely because the employer has not given such notification. However, if the relationship with the fidelity guarantor was not notified despite special circumstances that the contract would have been terminated if the relationship with the fidelity guarantor would have been terminated, it can be deemed that the fidelity guarantor was deprived of the opportunity of termination of the contract, the responsibility of the fidelity guarantor is denied.
[1] Article 1 (2) (see current Article 2) of the former Fidelity Guarantee Act (amended by Act No. 6592 of Jan. 14, 2002) / [2] Article 4 of the former Fidelity Guarantee Act (amended by Act No. 6592 of Jan. 14, 2002) / [3] Articles 4 and 5 of the former Fidelity Guarantee Act (amended by Act No. 6592 of Jan. 14, 2002)
[2] Supreme Court Decision 99Da28340 decided Aug. 24, 1999 (Gong1999Ha, 1961) Supreme Court Decision 2000Da41875 decided Apr. 24, 2001 (Gong2001Sang, 1198) / [3] Supreme Court Decision 93Da5741 decided Apr. 26, 1994 (Gong1994Sang, 1451 decided Oct. 25, 2002 (Gong2002Ha, 2831)
The Bankruptcy Trustee of the Minecheon Credit Cooperatives (Attorney Jeong-hun et al., Counsel for the bankrupt)
Defendant 1 and one other (Attorney transferred-type et al., Counsel for the defendant-appellant)
Daejeon High Court Decision 2002Na6188 delivered on December 20, 2002
The appeal is dismissed. The costs of appeal are assessed against the plaintiff.
1. Article 1 of the former Fidelity Guarantee Act (amended by Act No. 6592 of Jan. 14, 2002) provides that "a contract for fidelity guarantee" refers to a contract under which an employer agrees to compensate for the damages suffered by an employee's act. Thus, as in this case, the above Act cannot be applied immediately to a contract for fidelity guarantee with the purport of compensating the damages suffered by the non-party who is the representative of the Macheon Credit Union (hereinafter referred to as the "Macheon Credit Union"), who is the non-party, during his/her bankruptcy, as the president of the Macheon Credit Union (hereinafter referred to as the "Macheon Credit Union"). However, although the Macheon Credit Union is not an employee based on an employment contract, even if it is not an employee based on an employment contract, it is similar to an employee in that it continues business operations, etc. for a certain period of time, and thus, it bears the responsibility of compensation for the illegal act during his/her term of office, and in particular, it is reasonable to interpret the provisions of Article 4 subparagraph 1 of the above Act separately.
The court below's decision that this case's fidelity guarantee contract is also applicable to this case's fidelity guarantee contract is just in accordance with the above legal principles, and there are no errors in the misapprehension of legal principles as to the fidelity Guarantee Act.
2. Even if a private person is found to be jointly with the representative of a juristic person, if the representative of a juristic person knew that it would cause the liability of the guarantor due to the private negligence committed in the course of his duties, the juristic person is aware of such fact. In light of the legal principle that the notification duty under Article 4 subparag. 1 of the above Act is to be given to the juristic person (see Supreme Court Decision 99Da28340 delivered on August 24, 199), it shall not be deemed that the juristic person is not aware of the fact in the course of guaranteeing the identity of a juristic person whose representative is the principal, and in this case, it shall not be interpreted that the juristic person has the notification duty only when another officer or employee who is not the representative becomes aware of the tort.
The court below held that the non-party, who was the president of the Minecheon Consultative Council from around 1975, caused damage to the Minecheon Union due to unfair loan and unfair loan, and thus, in the early 1990s when the defendants concluded a contract for fidelity guarantee, the non-party, the representative of the Minecheon Consultative Council, had been aware of the fact that the non-party, who was the representative of the Minecheon Consultative Council, has already caused the non-party to be liable for the fidelity guarantor's liability due to the non-party's negligence in his business or the non-party's negligence. Thus, the judgment of the court below is just in accordance with the above legal principles and it is not erroneous in the misapprehension of legal principles as to the Act on the Guarantee of Personal Identity.
3. Where an employer has the duty to notify under Article 4 of the above Act, the employer is not exempt from the responsibility of the fidelity guarantor merely because the employer did not notify it. However, where the fidelity guarantor and the guarantor did not notify despite special circumstances that the relationship between the fidelity guarantor and the guarantor would have terminated if they received such notification, and it can be deemed that he deprived of the opportunity of the fidelity guarantor to cancel the contract, the responsibility of the fidelity guarantor shall be denied (see, e.g., Supreme Court Decisions 93Da5741, Apr. 26, 1994; 2002Da13614, Oct. 25, 2002).
The court below determined that Defendant 1 was presumed to have terminated the contract of the fidelity Guarantee if the Defendants were notified of the Nonparty’s non-party’s non-party’s non-party’s non-party’s non-party’s non-party’s non-party’s non-party’s non-party’s non-party’s non-party’s non-party’s non-party’s non-party’s non-party’s non-party’s non-party’s non-party’s non-party’s non-party’s non-party’s non-party’s non-party’s non-party’s non-party’s non-party’s non-party’s non-party’s non-party’
Examining the records in accordance with the above legal principles, the fact-finding and judgment by the court below is just and acceptable, and there is no error in the misapprehension of legal principles as to the responsibility for fidelity guarantee.
4. 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 Yoon Jae-chul (Presiding Justice)