[1] The standards for determining whether an executive officer of a financial institution neglected his/her duty of care in breach of the duty of care and business judgment and whether the executive officer of a financial institution neglected his/her duty

[2] The standards for determining whether an executive of a financial institution is intentional or negligent in performing his/her duties

[1] An executive officer of a financial institution has the duty of due care as a good manager to the financial institution to which he belongs, and thus, he/she shall be deemed to have fulfilled his/her duty as an executive officer when he/she faithfully performs his/her duty of care. However, in a case where a financial institution is liable for damages due to nonperformance against an executive officer on the ground of his/her duty of care in connection with a loan, even if the loan was made by an executive officer as a result of difficult collection or impossible collection, it cannot be readily concluded that the decision of the executive officer who issued the loan decision violates his/her duty of due care or duty of due care as a good manager. If a financial institution's reasonable executive officer conducts a loan examination for the maximum interest of the company in accordance with due process with reasonable information and in good faith, the business judgment of the executive officer is within the permissible scope of discretion, and the financial institution's executive officer has fulfilled his/her duty of due care or duty of due care as a good manager. Whether he/she has neglected his/her duty of care in accordance with the above duty of care as a good manager should be determined in light of the terms and conditions and conditions of the loan.

[2] In determining a loan, an executive officer of a financial institution, in particular, where an executive officer of a community credit cooperative knew that he was in violation of the Acts and subordinate statutes or the articles of incorporation or was aware that he was a loan, received a certain illegal solicitation, was engaged in a loan for the purpose of acquiring illegal profits of himself or a third party, or where he was able to perform his duty of care with due care if he exercised the loan without knowing that he was able to have been able to have been able to have been able to have been able to have been able

[1] Articles 382(2) and 399 of the Commercial Act, Article 681 of the Civil Act / [2] Article 23(2) of the former Community Credit Cooperatives Act (amended by Act No. 6493, Jul. 24, 2001); Articles 39(1) and 401(1) of the Commercial Act

[1] Supreme Court Decision 96Da30465, 30472 decided Dec. 23, 1996 (Gong1997Sang, 512), Supreme Court Decision 2000Da9086 decided Mar. 15, 2002 (Gong2002Sang, 864) / [2] Supreme Court Decision 84Da2490 decided Nov. 12, 1985 (Gong1986, 18), Supreme Court Decision 91Da36093 decided Nov. 26, 1993 (Gong193, 845) (Gong201Da76854 decided Feb. 26, 2002)

Seoul High Court Decision 201Na14488 delivered on May 1, 201

Defendant (Attorney Jeong-hee et al., Counsel for defendant-appellant)

Seoul High Court Decision 2000Na33913 delivered on July 19, 2001

The judgment below is reversed and the case is remanded to Seoul High Court.

We examine the grounds of appeal.

1. According to the reasoning of the judgment below, the court below acknowledged the facts based on the evidence of employment, and found that the defendant was the chief director of the plaintiff's credit cooperative and gave a loan of 60 million won in total to the non-party 1, 2, 3, and 4 who was one of the parties or the non-party 1, 2, 3, and 4 who was the non-party 5. However, although some of the non-party did not pay a loan from the plaintiff's credit cooperative in the past at the time of the loan, it was decided that the non-party was not a person with interest or bad credit standing subject to the prohibition of new loan until the non-party reached the loan. Considering that the non-party's past experience of overdue loans and other credit standing conditions of the plaintiff's credit cooperative, it is sufficient to find that the defendant could not be able to repay the loan smoothly, or that the non-party was unable to know about his ability to repay the loan at the time of the loan in this case, or that the non-party was not aware of his personal or gross negligence.

2. Article 23(2) of the former Community Credit Cooperatives Act (amended by Act No. 6493, Jul. 24, 2001) provides that an executive shall be jointly and severally liable for damages inflicted upon a credit cooperative or any other person by intention or gross negligence in performing his/her duties.

An officer of a financial institution has the duty of due care as a good manager to a financial institution to which he belongs, and thus, he/she shall be deemed to have fulfilled his/her duty of due care as an officer. However, in cases where a financial institution is liable for damages due to nonperformance against an officer on the ground of his/her duty of care related to a loan, even if the loan made by an officer was caused as a result of difficult recovery or impossible recovery, it cannot be concluded that the judgment of the officer who issued the loan decision is in breach of the duty of due care or duty of due care as a good manager. If an officer of a financial institution conducts a loan examination in good faith for the maximum interest of the company according to appropriate procedures with reasonable information, unless there is any significant unreasonable in the decision making process, the officer's business judgment is within the permissible discretion and the officer's duty of due care or duty of due care is deemed to have fulfilled the duty of due care as a good manager for the company. However, in light of the ordinary loan officer's loan decision and the contents of the loan and the repayment plan (see Supreme Court Decision 2000Da16080.

In addition, as in this case, if an executive officer of a financial institution knew that he was in violation of the Acts and subordinate statutes or the articles of incorporation or was aware that he was a loan, received any illegal solicitation, or paid a reduction of the loan for the purpose of obtaining illegal profits of himself or a third party, or he paid a full-time care, he could have been able to perform his duty of care as an executive officer, but he could have been able to perform his duty of care.

However, in this case where the plaintiff asserts that he is liable for damages to the defendant on the ground that the defendant's intentional act or gross negligence is attributable to the defendant on the ground that he abused his official authority before his retirement to make a collective loan in excess of the same person's limit and caused the risk of recovery of claims to be appropriated for the repayment of his credit as part of his own loan by abusing his official authority before his retirement and transfer the risk of recovery to the credit cooperative, resulting in the failure of collection of claims, etc. as a result, caused the failure of collection of claims. Furthermore, in the case of the defendant's intentional act or gross negligence, it shall not be limited to simply simply judging whether the non-party has satisfied the formal qualification for receiving the loan, and further, it shall be deliberated and decided on whether the defendant, who is the defendant's other intentional act or gross negligence, knew that the loan was in violation of the Acts and subordinate statutes or the articles of incorporation, or has any interest in the loan, and if it is revealed to the defendant as a result, he shall be held liable due to intentional act or gross negligence.

In order to support these circumstances, according to the evidence No. 5, the above non-party 1, upon the introduction of the non-party 5, who was a usual relative, was aware of the defendant, and was demanded by the defendant to pay a total of KRW 50 million to the defendant at the end of his personal monetary transaction relationship with the defendant, and received the defendant's demand to pay the full amount of the loan, the defendant received a new credit loan of KRW 20 million from the plaintiff's treasury at the time when the defendant's term of office remains long, and delivered it to the defendant through the above non-party 5, and the defendant received the payment demand of KRW 30 million from the defendant after the defendant's retirement (the defendant also borrowed KRW 20 million to the above non-party 1,00,000,000 from the above non-party 1, and the non-party 1,000,000 won, and the non-party 1,000,000 won of the above loan was not received from the defendant 16.

Therefore, if the written statement, etc. containing such assertion was submitted as documentary evidence, the court below should further examine whether the above non-party 1 and the defendant met, in light of the degree of friendship between the above non-party 1 and the defendant, the size and details of personal monetary transaction relationship between the defendant and the above non-party 1, the relationship between friendship and money transaction relationship between the defendant and the above non-party 1, whether the defendant knew or could have easily known the above non-party 1 at the time of the loan of this case, whether the actual borrower is the non-party 1 in the loan of this case, whether the above non-party 1 used the loan from the plaintiff's treasury to pay personal debts to the defendant with the loan of this case, and whether the defendant used the loan of this case to the non-party 1 in an unreasonable manner by exercising undue pressure, and whether the loan of this case was made as a witness of the non-party 1 and the non-party 5's assertion to the effect that the above non-party 1's assertion was made.

Nevertheless, the court below determined that Gap evidence Nos. 16 and No. 20-1 and No. 20-2 were rejected, as well as that the statement of No. 5 alone was insufficient to recognize that the defendant offered the loan of this case to the above non-party No. 1, and that there was no circumstance to support the defendant's intentional or gross negligence without any further deliberation. Thus, the court below erred in the misapprehension of legal principles as to the defendant's intentional or gross negligence in the loan of this case, or in the misapprehension of the rules of evidence. The plaintiff's ground of appeal pointing this out is with merit.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Jae-in (Presiding Justice)