[2] Whether a victim corporation may be deemed to have known that a person with the comprehensive power of attorney of the victim corporation knew that an act of an employee who is the perpetrator does not constitute an act of performing his/her duties (affirmative), and whether such a legal principle applies to cases where the agent acts as a breach of trust (affirmative)

[3] The case holding that, in case where an employee of a securities company arbitrarily traded shares with the funds of the victim company that deposited in the repurchase agreement bonds deposit account in collusion with the victim company's financial director, since the above employee of the securities company knew that the act does not belong to the act of conducting the business of the securities company, the victim company cannot be held liable for employer to the above securities company on the ground that the victim company

[2] In a case where a corporation is a victim, if an agent with comprehensive power of representation of the corporation's business affairs becomes aware that an act of an employee who is the perpetrator does not constitute an act of performing the business affairs of the victim, the victim corporation should be deemed to have been aware of such act. This legal doctrine also applies to the case where the agent acts as an agent

[3] The case holding that, in case where an employee of a securities company arbitrarily traded shares with the funds of the victim company that deposited in the repurchase agreement bonds deposit account in collusion with the victim company's accounting director, since the above accounting director knew that the act of employee of the securities company does not belong to the act of managing affairs of the securities company, the victim company cannot be held liable for employer against the above securities company on the ground that the victim

In light of the records, there is no circumstance in which the plaintiff company's action against the co-defendant 1 in relation to the act of embezzlement in this case cannot be found that the agreement between the plaintiff company and co-defendant 1 in relation to the act of embezzlement in this case extends to the defendant company, which is the co-defendant 1's employer, so the plaintiff company and co-defendant 1 in this case cannot accept the argument in the grounds of appeal on which

2. As to employer liability

Even in cases where an employee's illegal act falls within the scope of external execution of business affairs, if the victim himself/herself knew, or was unaware of gross negligence, that the employee's act does not constitute an act of supervising the business affairs on behalf of the employer or the employer, the victim cannot be held liable for the employer's liability (see Supreme Court Decisions 83Da217, Jun. 28, 1983; 92Da10531, Jul. 28, 1992; 95Da17595, Dec. 10, 196; 95Da17595, Dec. 10, 196; 200, if the victim is an agent with comprehensive power of attorney in relation to the business affairs of the corporation, the victim corporation becomes aware that the act does not constitute an act of acting as an agent of the offender in relation to the business affairs of the corporation (see, e.g., Supreme Court Decision 2005Da3153, Dec. 39, 2005).

According to the reasoning of the judgment of the court of first instance as cited by the court below and the records, the co-defendant 1, the vice head of the defendant company's ordinary housing site account, deposited the funds of the plaintiff company with the non-party, who is a financial director of the plaintiff company, and agreed to divide profits from the plaintiff company's capital investment in future. Accordingly, on March 6, 2002, the non-party deposited KRW 500 million in the bonds with repurchase agreement under the name of the plaintiff company established at the above branch. Thus, the co-defendant 1 converted the above account into the bonds consignment account that can invest in shares at around 08:50,00,000 won from September 23 of the same year to the above account. Thus, the co-defendant 1, an employee of the defendant company, in collusion with the non-party director of the plaintiff company, the non-party company's act of acquiring shares at will and did not constitute the joint defendant 1's stock trust account with the non-party's authority of attorney and the defendant 1's trust account.

Nevertheless, the court below held that even if the non-party, who is the financial director of the plaintiff company, was aware of the fact that the embezzlement by the co-defendant 1, who was an employee of the defendant company, changed the bonds with repurchase agreement to a stock consignment account and traded shares, constitutes a factual act, the act of embezzlement by the co-defendant 1's above embezzlement does not constitute a legitimate act of execution of business affairs, the court below held that the defendant company's employer's liability cannot be exempted. Thus, the court below erred in the misapprehension of legal principles as to the relationship with or exemption from the employer'

3. Conclusion

Therefore, without examining the remaining grounds of appeal, the part against the defendant among the judgment below is reversed, and this part of 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.

Justices Kim Ji-hyung (Presiding Justice)