(영문) 서울고등법원 2014.2.6.선고 2013나2011476 판결

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손해배상(기)

Cases

2013Na2011476 Compensation (ar)

Appellant Saryary appellant

Plaintiffs 1 through 41, 43 through 93, 95 through 124 in the attached list of plaintiffs

Plaintiff-Appellant

Plaintiff 42, 94 listed in the attached list of Plaintiffs

Defendant-Appellant and Appellants

1. A stock company;

2. B

3. C.

4. D;

5. E.

7. G accounting corporation.

Defendant Elives

6. F;

The first instance judgment

Seoul Central District Court Decision 201Gahap139025 Decided May 5, 2013

Conclusion of Pleadings

January 9, 2014

Imposition of Judgment

February 6, 2014

Text

1. The part of the plaintiffs' claim for damages for reasons of Article 162(1)4 of the Financial Investment Services and Capital Markets Act among the plaintiffs' lawsuits against defendant F added at the trial is dismissed.

2. The remaining plaintiffs' appeals against the defendant corporation A, B, C, D, E, F, G accounting corporation, defendant corporation A, B, C, D, and E, appeal against the plaintiffs, and appeal against the plaintiffs listed in the separate sheet of the amount for the second person attached to the defendant G accounting corporation, respectively, shall be dismissed.

3. Of the costs of appeal, 80% of the portion arising between the plaintiffs and the defendant A, B, C, D, E, and G Accounting Corporation shall be borne by the plaintiffs, and the remainder shall be borne by the defendants, and the part arising between the plaintiffs and the defendant F shall be borne by the plaintiffs.

4. Of the list of the 2nds attached to the judgment of the court of first instance, "amount of damage corresponding to Plaintiff B" means "141,192,935 won" as "141,193,120 won", and "amount of personal use" means "28,238,587 won" as "28,238,624 won", and "B" as "amount of public use under section 123 below the 124ths below the 124ths below the 123ths below the 124ths below the 124ths below the 124ths below the claim amount, "45,114,935 won, damages amount, 20,841,035 won, 4,168,207 won".

Purport of claim and appeal

1. Purport of claim

The Defendants shall pay to each of the Plaintiffs the amount of money stated in the separate sheet No. 1 of the amount of money, and from 10, 12.10, 201 to the date of the final delivery of the copy of the application for the purpose of the instant claim and the cause of the instant claim, 5% per annum, and 20% per annum from the next day to the date of full payment.

2. Purport of appeal

A. The plaintiffs other than plaintiffs BX and DX

In the judgment of the court of first instance, the part against the above plaintiffs is revoked, and the defendants shall pay 5% per annum from October 12, 201 to the final service date of a copy of the application for modification of the claim and the cause of claim in this case, and 20% per annum from the next day to the day of full payment.

B. Defendant A, B, C, D, and E

The part of the judgment of the court of first instance against the defendant corporation A, B, C, D, and E shall be revoked, and the plaintiffs' claims corresponding to the above revoked part shall be dismissed.

C. Of the judgment of the first instance court of the defendant G Accounting Corporation, the part against the defendant G Accounting Corporation is revoked, and all the plaintiffs' claims in the list of the second-party amount corresponding to the revocation part are dismissed.

Reasons

1. Quotation of judgment of the first instance;

The reasoning for this Court’s explanation concerning this case is as follows: (a) the argument and judgment concerning Defendant F shall be newly used from the date of the first instance judgment No. 25 to the date of the second instance judgment No. 28 to the date of the second instance judgment No. 25 to the date of the second instance judgment No. 28; and (b) the subsequent 40 to the date of the first instance judgment No. 16 to the date of the second instance judgment No. 3; and (c) the reasoning for the judgment No. 420

2. Claim against Defendant F;

A. The plaintiffs' assertion

Defendant F, as an auditor of the Defendant Company, made a false statement in the audit report attached to each business report of the 12th (2009) and 13th (2010) of the Defendant Company, that the financial statements of the Defendant Company were prepared appropriately in accordance with the laws and regulations, and thus, Defendant F is liable for damages against the Plaintiffs who acquired the Defendant Company’s stocks from March 31, 201 to July 13, 201, which was known as the 12th business report published under Article 162(1)4 of the Financial Investment Services and Capital Markets Act.

B. Determination

1) Article 170(1) of the Financial Investment Services and Capital Markets Act, Article 170 of the Act on External Audit and Capital Markets provides for the liability of an external auditor for damages, and Article 17(4) of the Act on External Audit and Capital Markets shall apply mutatis mutandis to the case where an auditor is liable for damages to a company or to a third party; and Article 17(4) of the Act on External Audit and Capital Markets provides that if an auditor is jointly liable for damages to a company or to a third party, the auditor and the director and the auditor of the company concerned shall be jointly liable for damages. The purpose of each provision above is that a company whose total amount of the end assets and liabilities, and the number of employees is larger than a certain size, shall be audited by the external auditor pursuant to the Act on External Audit and Capital Markets; however, even if the external auditor's liability for damages is recognized, the auditor of the company shall not be exempt from the unique liability for damages and shall not be deemed that the company is liable for damages jointly with the external auditor.

Therefore, based on Article 170(1) of the Financial Investment Services and Capital Markets Act and Article 17(4) of the External Audit Act, the Plaintiff’s above assertion seeking liability for Defendant F is without merit.

2) Whether liability under Article 414(2) of the Commercial Act arises

The Plaintiffs asserted that Defendant F neglected the duty to audit the performance of duties by directors under Article 412 of the Commercial Act, and the duty to investigate and report documents to a general meeting of shareholders under Article 413 of the same Act, but the auditor’s liability for damages to a third party is in accordance with Article 414(2) of the Commercial Act.

A person who asserts that an auditor has neglected his duties under the Commercial Act by bad faith or gross negligence. The evidence submitted by the plaintiffs alone is insufficient to acknowledge that the defendant F neglected his duties as an auditor in bad faith or by gross negligence, and there is no other evidence to acknowledge this otherwise. Rather, in full view of the aforementioned evidence and the purport of the entire pleadings, the following circumstances, namely, the co-defendant E and the defendant F, after the appointment of the auditor as the auditor of the defendant company, have approved the minutes and financial statements of the committee appointing auditors, approval of audit report, temporary general meeting minutes, etc. In particular, the defendant F, in light of the fact that the shareholders' meeting of March 30, 2009 appointed as the auditor was a resolution of resolution of resolution of resolution of settlement of deficit and a statement of resolution of resolution of resolution of disposal of deficit, it is reasonable to deem that the defendant F performed his duties as the auditor of the defendant company in lieu of the above facts.

3) Determination on the liability under Article 162(1)4 of the Capital Markets Act

The Plaintiffs, in accordance with the statutes and the articles of incorporation, are the financial statements of Defendant F as an auditor of Defendant F Company in accordance with the business report in 2009 and the audit report in 2010 attached to each business report.

Since it stated that the company's assets and profits and losses are accurately indicated, the defendant F shall be liable to compensate the plaintiffs for the damages incurred by the company in accordance with Article 162 (1) of the Financial Investment Services and Capital Markets Act, as long as there is a false description or representation in the above business report and its accompanying documents as stated in the statement of business report, etc. and its accompanying documents.

As to this, Defendant F shall be deemed to have been able to recognize the false statement in the business report on December 29, 201, which was the date for filing the lawsuit in this case, at the latest. However, the complaint did not make such a assertion, and the complaint filed on August 12, 2013, for which the limitation period of one year elapsed, was the filing of the statement of grounds for appeal as of August 12, 2013, and accordingly, Defendant F asserted that this part of the suit is unlawful due to the lapse of the limitation period under Article 162(5) of the Capital Markets Act.

However, according to Article 162(1)4 of the Financial Investment Services and Capital Markets Act, if a person who acquired or disposed of securities issued by a corporation obligated to submit a business report due to a false description or representation of a material fact in the business report, or an omission of a description or representation of a material fact therein, sustains damages therefrom by the person who acquired or disposed of the securities issued by the corporation obligated to submit the business report, the person who consented to the statement in his/her opinion on the business report shall be liable for such damages. According to Article 162(5) of the said Act, the above liability for damages is extinguished if the claimant does not exercise his/her right to claim within one year from the date on which he/she became aware of the fact. Here, the date when the pertinent fact was known is deemed to be the time when the claimant actually aware of the false description or omission in the business report, and if the general public can be aware of the fact that the statement or omission was made by the claimant, barring any special circumstance, it shall be deemed that the claimant actually perceived

First, with respect to the time when the plaintiffs filed a lawsuit claiming for damages under Article 162(1)4 of the Financial Investment Services and Capital Markets Act against Defendant F, the Health Board stated in the complaint that the plaintiffs should compensate the plaintiffs' damages caused by window dressing accounting as an auditor of the defendant company (the director of the defendant company was liable for damages under Article 162(1)1 of the Financial Investment Services and Capital Markets Act; however, the auditor's defendants were not liable for damages by pointing out Article 162(1)4 of the Financial Investment Services and Capital Markets Act with regard to the auditor's directors). On March 13, 2013, the date when the first instance court was the date of pleading, the date of pleading, which was March 12, 2013, stated that the reasons for the claim was clearly based on Article 414(2) of the Commercial Act and Article 170(1)4 of the Financial Investment Services and Capital Markets Act, and that the plaintiff's liability for damages under Article 162 subparag. 14-1 of the Commercial Act with respect to the defendant F.

Next, as to the time when the plaintiffs perceived the false facts in the business report, it is clear that the defendant F, at the complaint of this case submitted on December 29, 2011 by the plaintiffs, was liable for damages for the reason that he had been employed as the auditor of the defendant company at the time when he made public notice of the business report of 2008 and the business report of 2009 using the accounting statements for the window dressing accounts. Accordingly, according to this, the plaintiffs can be deemed to have actually recognized the fact that the false statement or omission in the business report of this case was made on December 29, 201, which is the date for filing the lawsuit of this case.

Therefore, the part concerning the plaintiffs' claim for damages under Article 162 (1) 4 of the Capital Markets Act among the lawsuit of this case against the defendant F was filed on June 12, 2013, which was far more than one year from December 29, 201, where the plaintiffs actually recognized the false entry or omission of the business report, and thus, this part of the lawsuit is unlawful as it has expired the exclusion period under Article 162 (5) of the Capital Markets Act.

3. Additional determination as to limitation on liability

Defendant GG accounting corporation argues that Defendant GG accounting corporation failed to discover matters pointed out by the Securities and Futures Commission due to intentional window dressing accounting and obstruction of audit while Defendant GG accounting corporation faithfully audited audit data provided by Defendant GG accounting corporation in accordance with the standards for accounting audit. Therefore, Defendant GG accounting corporation’s liability is essentially attributable to negligence, while Defendant GG accounting corporation’s liability is based on intention, the degree of illegality and responsibility of breach of duty of GG accounting corporation is considerably low compared to that of Defendant company, Defendant G accounting corporation revised and announced the correction of the accounting errors of each financial statement in 2008 to 2010, and limited audit opinions by conducting additional audit of the past financial statements in 2010.

However, the joint tort liability does not individually seek damages from each individual act of the perpetrator, but to pursue the liability for the joint tort jointly committed by the perpetrator. As such, the scope of liability for damages from joint tort is determined by comprehensively evaluating all the acts of the tortfeasor in relation to the victim, and the amount of compensation shall be borne by each tortfeasor for the whole amount of the compensation. Even if the extent of processing of the tort by one tortfeasor is minor compared to other tortfeasors, damage shall be borne by one tortfeasor.

In relation to a person, the scope of the perpetrator’s liability cannot be limited to part of the amount of compensation determined as above (see Supreme Court Decision 2000Da13900, Sept. 29, 200).

Since Defendant G Accounting Corporation’s breach of duty by Defendant G Accounting Corporation, an external auditor, and the violation of duty by Defendant B, C, D, and E, the Defendant Company and its agencies, are objectively related and jointly liable for joint tort in relation to the Plaintiffs, Defendant G Accounting Corporation’s joint tort liability. As such, the extent of liability and damages cannot be limited as part of the amount of compensation, on the ground that the degree of processing of the tort is relatively minor compared to other Defendants. On a different premise, the above assertion by Defendant G Accounting Corporation is without merit.

4. Conclusion

Therefore, the part of the plaintiffs' claim for damages for reasons under Article 162 (1) 4 of the Financial Investment Services and Capital Markets Act among the plaintiffs' lawsuits against the defendant F, which were added in the trial, is unlawful and dismissed. The plaintiffs' claims against the defendant G Accounting Corporation as stated in the defendant company B, C, D, and E and the list of the second amount for reasons within the above recognition range, and the rest of the claims shall be dismissed without reasons. The plaintiffs' claims against the defendant G Accounting Corporation except the plaintiffs as stated in the list of the second amount for the defendant G Accounting Corporation and the plaintiffs' claims against the defendant F shall be dismissed, without reasons. The judgment of the first instance court, which concluded as above, is legitimate, and therefore, the remaining plaintiffs' appeals against the defendant company B, C, D, F, G Accounting Corporation, the defendant company B, C, D, E, and E, and the second amount for the defendant G Accounting Corporation's remaining list of the amount for compensation for damages for the plaintiff 2, 281, 281, 30, 4281, 281, 2, 194.

Judges

【Presiding Judge】

Judges Lee Jong-chul

Judges are accommodated in judges;

Attached Form

A person shall be appointed.