A school foundation (Attorney Hun-Ba et al., Counsel for the defendant-appellant)

Industrial Bank of Korea (Law Firm Rate, Attorneys Park Jong-young et al., Counsel for the plaintiff-appellant)

Kim Ho-ro

d April 10, 203

Seoul District Court Decision 200Gahap59062 Delivered on May 24, 2002

1. The defendant's appeal is dismissed.

2. Of the costs of appeal, the costs of appeal shall be borne by the defendant's Intervenor, and the remainder shall be borne by the defendant.

1. Purport of claim

The defendant shall pay to the plaintiff 12,128,221,062 won with 5% interest per annum from the day following the day on which a copy of the complaint of this case was served to the day of sentencing, and 25% interest per annum from the next day to the day of full payment.

2. Purport of appeal

The judgment below is revoked. The plaintiff's claim is dismissed.

3. Application for the return of provisional payments;

The plaintiff shall pay to the defendant the amount of 13,480,60,780 won with an annual rate of 5 percent from June 29, 2002 to the date of full payment.

1. Facts of recognition;

The following facts may be acknowledged in full view of the evidence No. 1, evidence No. 2-1, evidence No. 2-2, evidence No. 3-1 through 7, evidence No. 4-1 through 30, evidence No. 5-1 through 15, evidence No. 1-4, evidence No. 2-1, and evidence No. 2-1, and evidence No. 2-2, the witness’s testimony to the superintendent of the office of education of the court of the original instance, and the fact-finding results to the superintendent of the office of education of the Seoul Special Metropolitan City.

A. On July 12, 199, Nonparty 1 submitted a plan to normalize the Plaintiff’s private teaching institute by contributing 12 billion won in total to the Plaintiff’s private teaching institute and the Seoul Special Metropolitan Office of Education, including 5.5 billion won, 4.5 billion won, 4.5 billion won as basic property for profit, and 2 billion won as school environmental improvement funds, and deposited 12 billion won in the passbook other than the revenue and expenditure amount under the name of the Seoul Special Metropolitan Office of Education.

B. On September 29, 199, the Plaintiff’s private teaching institute accepted a plan for normalization submitted by opening a temporary board of directors to accept the plan, on the other hand, seven new directors, such as early benefit, were appointed, and then applied for the approval of the appointment of directors to the Superintendent of the Seoul Special Metropolitan City Office of Education. The Seoul Special Metropolitan City superintendent approved the plan on October 6, 199, and seven directors, such as early benefit, were appointed as the chief director.

C. Defendant 12 billion won (hereinafter “Defendant 1”) who is the head of the branch office of Defendant Bank Hyeong-gu’s Horizontal Housing Site (hereinafter “Defendant 1”) visited the Seoul Office of Education on October 20, 199 and applied for the transfer of the said money to attract 12 billion won with the above branch office. Jeon Jong-gu, a public official of the Seoul Office of Education, who is a public official of the Seoul Office of Education, affixed the seal of the president of the Plaintiff 2 and the official of the Seoul Office of Education to jointly withdraw the said money, thereby allowing the Plaintiff 2 to jointly withdraw the said money. In order to prevent early withdrawal, 50 million won under the name of the Plaintiff 2,460,493,150 (the sum of interest 60,493,150 billion won on the 4.5 billion won, which is an fundamental property for profit under the above normalization Plan) and 200 billion won to the said Office of Education, emphasizing the Plaintiff 1’s 600th of the said Office of Education and the said 20.

D. However, Kim Il-ro has consented to the request of 2 billion won to grant loans as security. On October 20, 199, for the convenience of loans instead of opening a deposit account in the name of the Plaintiff Institute, the bank account in the name of the actual owner of the Plaintiff Institute was forged in three copies of the application for the bank transaction in the name of the actual owner of the Plaintiff Institute and opened each deposit account in the name of the actual owner (the number omitted), and the above deposit amount was divided (the number omitted), 2 billion won in the account (the number omitted), 460, 493, 150, 50 billion won in the account (the date October 20, 200), 50 billion won in the account (the number omitted), 50 billion won in the above account (the number omitted), 50 billion won in the name of the Plaintiff Institute and 50 billion won in the name of the actual owner of the Plaintiff Institute (the number omitted), 50 billion won in the form of the above bank deposit account in the name of the Defendant on 19.20.

047649-13-003 Account 5.5 billion won.

E. On November 27, 199, the Plaintiff’s private teaching institute opened a board of directors on November 27, 199, and passed a resolution to incorporate each of the above deposit claims against Defendant Bank into the basic property for profit of the Plaintiff’s

F. On January 20, 200, Kim Ho-ro decided to transfer deposits of 5.5 billion won which come due on the day from Cho Il-sung to other financial institutions. Accordingly, upon receiving a request to withdraw and request to change the above money, he withdrawn gold amounting to 5,592,125,000 won (including interest) using a withdrawn sheet with the seal affixed only by the corporate seal of the Plaintiff’s driving school, on condition that he supplements the official seal of the Seoul Metropolitan Office of Education within 2,3 days, and then issued a check to the head of Mamo, who is an employee of the Plaintiff’s driving school.

G. On January 24, 2000, 1 copy of the application for bank transaction, where the official seal of the Seoul Special Metropolitan City superintendent's office of education is affixed, was put to the Sung flood, which is the subordinate employee of the Seoul Special Metropolitan City superintendent's office of education, and the sexual flood was forged by using this on January 24, 200, and then forged the official seal of the Seoul Special Metropolitan City superintendent's office of education, and then sent the front and forged official seal to Kim Il-ro. On the following day, upon receipt of the request of Kim Il-ro, two copies of the withdrawal money sheet in blank where the seal of the Plaintiff's office of education is affixed.

F. On January 27, 200, Chosung ordered the Sung flood to withdraw the deposit amount of KRW 4,560,493,150. On January 31, 2000, Kim Jong-ray requested to withdraw the deposit amount of KRW 4,560,493,150 which was arrested on the preceding day from sexual flood, etc., and upon the request of the request, he withdrawn the deposit amount of KRW 4,560,493,150 which was signed and sealed by the superintendent of the Seoul Special Metropolitan City Office of Education as the corporate seal of the Plaintiff’s private teaching institute, which was signed and sealed in Chapter 1 of the monetary withdrawal sheet in blank with the seal of KRW 4,49,582,454 (hereinafter the second deposit withdrawal) and then remitted the deposit amount of KRW 4,49,582,454 to the bank’s deposit account designated by the bank (the second deposit withdrawal). On January 31, 2000, he delivered the deposit amount of KRW 1936.3636

G. Meanwhile, on October 22, 1999, Kim Ho-ro withdrawn the above gold 2,036,513,698 won, and as above, the remaining one of the two copies of the withdrawal money sheet in blank where the corporate seal of the Plaintiff’s driving school, which was the Plaintiff’s driving school, affixed the seal of the Seoul Special Metropolitan City Superintendent’s Office of Education, affixed the seal of the official seal of the Seoul Special Metropolitan City Superintendent’s Office of Education and kept it in one of the two copies, and was confiscated by the Prosecutor’s Office.

2. Determination

A. The party's assertion and judgment as to the depositor

(1) The parties' assertion

The Plaintiff asserted that the actual contributor of the instant deposit, including the deposit account in the name of the court room, is the Plaintiff’s private teaching institute, and that there was an explicit or implied agreement between the Defendant bank and the Plaintiff bank to vest the Plaintiff’s claim for the refund of the instant deposit in the Plaintiff’s private teaching institute, and thus, the Defendant bank is obligated to return the instant deposit to the Plaintiff’s private teaching institute that is the deposit owner. The Defendant bank asserts that the deposit in the name of the court room among the instant deposit is not the Plaintiff’s private teaching institute, but the Plaintiff’s owner is an in-depth

(2) Determination

After the Emergency Financial and Economic Order (Presidential Emergency Financial and Economic Order No. 16, Aug. 12, 1993; Presidential Decree No. 5493, Dec. 31, 1997; Act No. 5493, Aug. 12, 1993; Act No. 5493, Dec. 31, 1997), any person who intends to make a deposit in a financial institution shall, in principle, join his/her resident registration certificate and seal impression, and make a deposit in his/her own name. Even if a proxy is permitted to make a deposit in his/her own name with his/her resident registration certificate and seal impression, the financial institution shall be deemed to be the intention to conclude a deposit contract by deeming the deposit owner as the trading party who has made a real name verification through the resident registration certificate as the nominal owner, barring any special circumstance (see, e.g., Supreme Court Decisions 97Da535359, Nov. 13, 1998; 2005Da636167, Feb. 167, 20007

In light of the above circumstances, i.e., the 12 billion won deposit account was deposited with the Office of Education in accordance with the plan for the normalization of the Plaintiff’s private teaching institute. The above Superintendent visited the Office of Education of Seoul as he approved the plan for the normalization of the Plaintiff’s private teaching institute, and applied for the transfer of the above money. The public official in charge of the above Office of Education signed the application for three bank transactions with the name of the corporation of the Plaintiff’s private teaching institute and the name of the Seoul Office of Education and affixed the seal to the 3 bank. The above money can not be disposed of without the approval of the Superintendent’s Office of Education, and it can be withdrawn only if the 12,060,493,150 million won was transferred to the 3rd bank account under the name of the 5th bank account, and the remaining bank deposit account was withdrawn under the name of the 4th bank account under the name of the 5th bank account and the 5th bank account was dispatched to the 5th bank account under the name of the 20th bank account.

Therefore, as seen earlier, the withdrawal of each deposit shall not take effect as the return of deposits to the Plaintiff’s private teaching institute. Thus, the Defendant bank is obligated to return each deposit to the Plaintiff’s private teaching institute, barring any special circumstance.

B. The assertion and determination on the defendant bank

(1) As to this, the Defendant bank asserted that the loan act of this case secured by the above two billion won deposit claims and the withdrawal of the first and second deposits constitutes tort against the Defendant bank, which constitutes deception by the Defendant bank, and thus, the Plaintiff’s private teaching institute is liable for damages equivalent to the above withdrawal amount suffered by the Defendant bank as an employer of early benefit, and thus, it offsets the above damages claim against the Defendant bank’s obligation to return deposits by its automatic claim.

(2) Article 756 of the Civil Act, which is the requirement for an employer's liability, means that an employee's unlawful act is objectively deemed to be an act of performing the employee's business without considering subjective circumstances when it appears that the employee's act is objectively conducted or related to the employee's business activity or the performance of the business. Here, whether it is objectively related to the employee's performance of the business should be determined by considering the degree of the employee's inherent duty and the tort and the degree of the employee's occurrence of damage and the degree of the employee's responsibility for failing to take preventive measures (see Supreme Court Decision 2000Da34426, Jan. 10, 203). Even in cases where the employee's unlawful act appears to fall within the scope of the employee's external execution of the business, if the victim knew that it does not fall under the employee's act of performing the business on behalf of the employer or the employer, or he did not know it by gross negligence, the employee's responsibility for the employee's negligence cannot be held.

In light of the following facts: (a) Defendant 4’s act of lending money and (b) Defendant 5’s act of withdrawing money constitutes the act of Defendant 4’s act of executing the affairs of Plaintiff 5’s private teaching institute; and (c) Defendant 4’s act of withdrawing money under the name of Defendant 5’s name after Defendant 5’s request for the above act of withdrawing money; (b) Defendant 5’s act of withdrawing money under the name of Defendant 5’s office of education; (c) Defendant 4’s act of withdrawing money under the name of Defendant 5’s office of education; and (d) Defendant 4’s act of withdrawing money under the name of Defendant 5’s office of education; and (e) Defendant 4’s act of withdrawing money under the name of Defendant 5’s office of education, which was known that it was not related to the execution of the affairs of Plaintiff 5’s office of education; and (e) Defendant 4’s act of withdrawing money under the name of Defendant 5’s office of education, which was issued to Plaintiff 5’s office of education.

(3) On this point, the defendant bank is merely the representative of the bank which is the principal, and the effect of the bank which is the principal is attributed to the bank from among the acts of the branch office of the bank is limited to a juristic act or declaration of intent which is allowed to act as proxy, and as to other facts or tort, it cannot be recognized by nature as proxy. Since the defendant bank's branch office Kim Il-e jointly committed acts and tort, the defendant bank's subjective attitude or gross negligence cannot be acknowledged as the defendant bank's bad faith or gross negligence. Thus, in case of a juristic person, the representative director who executes the business, director or general manager who performs the business can be viewed as the same as the company's bad faith. The head of the bank branch office is a manager who has been granted comprehensive power of attorney from the bank for all judicial and extra-judicial acts on behalf of the proprietor of the business under the Commercial Act. Thus, the defendant bank cannot be held liable for the plaintiff bank's withdrawal of this case's comprehensive power of attorney even if the head of the branch office of the bank, which was granted by the defendant bank.

(4) In addition, since the defendant bank, as a director of the plaintiff's private teaching institute, deceiving the defendant bank as a director of the plaintiff's private teaching institute, and caused the defendant bank to withdraw the loans in this case and the first and second deposits, the plaintiff's private teaching institute is liable for damages pursuant to Article 35 of the Civil Act. Thus, the plaintiff's private teaching institute is obligated to compensate for damages pursuant to the claim for damages, and it is argued that the claim for damages is offset against the defendant bank's obligation to return deposits with automatic bonds. However, since the "director or other representative" under Article 35 (1) of the Civil Act means the representative body of a corporation, and since a director or auditor who has no power of representation does not represent the outside, he cannot be held liable for damages pursuant to Article 35 of the Civil Act to the corporation even if he did not cause any damage to another person in connection with his duties, there is no evidence to acknowledge that he has the power of representation of the

3. Conclusion

Therefore, as the Plaintiff’s private teaching institute seeks, the Defendant bank is obligated to pay to the Plaintiff’s private teaching institute 12,128,221,062 won (gold KRW 5,592,125,00 + gold KRW 4,499,582,454 + gold KRW 2,036,513,608) plus interest accrued until the time of withdrawal, as the Plaintiff’s private teaching institute seeks, 5% per annum under the Civil Act from August 24, 2000 to May 24, 2002, which is the date following the delivery of a copy of the instant complaint, until the date of the original decision, and 25% per annum as stipulated in the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings, etc. from the next day to the date of withdrawal. Accordingly, the Plaintiff’s private teaching institute’s claim for its performance should be accepted. Accordingly, the lower court’s judgment should be justified and dismissed as it is without merit.

Judges Kim Jin-jin (Presiding Judge)