(영문) 서울고등법원 2006.1.25.선고 2005나27678 판결

1. Of the judgment of the court of first instance, the part against the defendant exceeding the amount ordered to pay under the following paragraph 2 shall be revoked, and the plaintiffs' claim against the defendant corresponding to the revoked part shall be dismissed.

2. The defendant

(a) From September 23, 200 to January 25, 2006, the amount of 5,073, 758, 630 won per annum to ○○○○○○○○○○○○○○○○○○○○○○○○○; 0.5% per annum to 0.4,80,000 won per annum; 20,000 won per annum from September 16, 2003 to 15, 30,000 won per annum; 20,353,63, 688, 981 won per annum; 20,00,000 won per annum to 10,30,50,000 won per annum; 20,50,000 won per annum to 10,30,50,000 won per annum; 30,50,000 won per annum to 20,815.

C. The plaintiff shall pay 103, 649, 99 won, and 5% per annum from May 28, 2003 to January 25, 2006, and 20% per annum from the next day to the day of full payment to the day of full payment.

3. The plaintiffs' appeal and the defendant's remaining appeal against the plaintiffs are dismissed, respectively.

4. The total costs of the lawsuit are five minutes, and the two costs are assessed against the plaintiffs, and the remainder are assessed against the defendants.

Purport of claim and appeal

1. Purport of claim

Main and Preliminary, the Defendant (1) is the Plaintiff ○○○○, Inc. (hereinafter “Plaintiff Company”).

from April 24, 2003 to the service date of a copy of the complaint of this case from April 24, 2003 to the day of service of a copy of the complaint of this case.

(2) 5% per annum, 20% per annum from the following day to the date of full payment, and 20% per annum; and

For high ○○, gold 44,100,00,000 won and gold 22,00,000,000 won among them, and for 00 won, 20 won.

16. From September 30, 200 to 2,00, 000 won, from September 30, 2002 to 6,000, 000, and 00 won

From December 9, 2002, 3,000, 000 won from January 2, 2003, 3,000, 000 won from January 2, 2003, 3,000, 000 won, 00 won

from March 7, 2003, gold 4,00,000, 000 won from April 11, 2003, gold

With respect to KRW 1,100,000, KRW 000, April 16, 2003, KRW 3,000, KRW 000, and KRW 00.

From the date of service of a copy of each complaint of this case to the date of service of a copy of each complaint of this case, 5% per annum and 5% from the following day

20% of 20% of 200,000,000 won to the plaintiff this account, (3)

From January 2, 2003 to the service date of a copy of the complaint of this case, 5% per annum and from the next day to the day of complete payment.

each share of 20% per annum shall be paid in 20% per annum.

2. Purport of appeal

A. Purport of the plaintiffs' appeal

Of the judgment of the court of first instance, the part against the plaintiffs who ordered payment shall be revoked.

The amount of KRW 2,079, 847, 808 and interest thereon to the Plaintiff Company shall be from September 23, 2004 to the day of full payment.

20% of money, (2) 13, 375, 917, 097 won to Plaintiff Lee ○○, and any related amount

From June 16, 2003 to the service date of a copy of the complaint of this case, 5% per annum and from the next day to the day of complete payment.

(3) The amount of 60,00,000 won and any equivalent amount shall be 20% per annum to the Plaintiff Hasan.

From January 2, 2003 to the service date of a copy of the complaint of this case, 5% per annum and full payment from the following day shall be made.

By the day, 20% interest per annum shall be paid in 20% interest per annum.

B. Purport of defendant's appeal

The part of the judgment of the first instance against the defendant shall be revoked, and the plaintiffs' recipient corresponding to the revoked part shall be revoked.

The appeal is dismissed, respectively.

Reasons

1. Basic facts

다음 각 사실은 당사자들 사이에 다툼이 없거나, 갑 제1호증의 1 내지 11, 갑 제2호증의 17, 갑 제3호증의 1 내지 3, 갑 제6호증의 1 내지 6, 갑 제7호증의 1, 2, 갑 제8, 9호증, 갑 제19호증의 1 내지 48, 갑 제20호증의 1 내지 25, 갑 제21호증의 1 내지 29 , 갑 제22호증의 1 내지 10, 갑 제23호증의 1 내지 6, 갑 제24호증, 갑 제27호증의 1, 2 , 갑 제45호증, 갑 제54호증의 1, 2, 갑 제67호증의 1, 2, 을 제1호증, 을 제3호증의 1, 2 , 을 제7호증, 을 제13호증의 1, 2, 을 제14호증의 1 내지 8, 을 제15호증의 1 내지 12 , 을 제16호증의 1, 2, 을 제19, 20호증, 을 제29호증의 1, 2, 을 제34호증의 1 내지 3, 을 제42, 46, 47호증, 을 제49호증의 1, 2, 을 제51, 52호증, 을 제74 내지 76호증의 각 1 내지 3 ( 갑 제1호증의 1 내지 11, 갑 제2호증의 17, 갑 제3호증의 1 내지 3, 갑 7호증의 1, 2, 갑 제9호증은 아래에서 보는 바와 같이 최○○가 위 각 서증을 위조하였다는 사실을 인정하는 범위 내에서만 증거로 설시한다 ) 의 각 기재 ( 갑 제19호증의 9, 10, 21, 23 , 갑 제20호증의 7 내지 9, 14 내지 16, 19, 21, 갑 제21호증의 9, 11, 14 내지 19, 21, 22 , 25, 27, 28, 갑 제22호증의 6, 을 제3호증의 1, 2, 을 제14호증의 2, 4 내지 8, 을 제15호증의 7, 9, 10, 을 제16호증의 1, 을 제19호증, 을 제34호증의 2, 3, 을 제49호증의 각 기재 중 각 일부 믿지 아니하는 부분 제외 ), 제1심 증인 최○○, 이ㅇㅇ, 마크 ㅇㅇㅇ이, 당심 증인 황○○의 각 증언 ( 제1심 증인 마크 0000, 당심 증인 황○○의 각 증언 중 일부 믿지 아니하는 부분 제외 ), 당심의 원고 회사 대표자 김○○, 원고 회사 대표자 겸 증인 이△△의 각 신문결과 ( 각 일부 믿지 아니하는 부분 제외 ) 및 제1심 법원

(1) The evidence No. 3-1, 2, and 8-2, No. 10, 11, and 11 are not trustable. The evidence No. 3-2, No. 3-2, No. 8-2, No. 10, and No. 11 are not stated.

A. ○○○ is the actual manager of the Plaintiff Company. The Plaintiff ○○○○ is the head of the Plaintiff ○○○, the △△△△△ is the second male of the Plaintiff ○○ and the joint representative director of the Plaintiff Company. The △△△△△△ was introduced on December 4, 2001, which was in charge of the Plaintiff’s financial management, by around 2001, the maximum ○○○○ was in charge of managing the Plaintiff’s funds. The △△△△ was a group of friendship members, which was the largest group of ○○○ in charge of the Plaintiff’s general affairs on the recommendation of the ○○○○○○, and the △△△△△ (the first mother high school was formed as the △△△△△△△, the last ○○, and the second ○○). However, among its members, he was admitted to the said high

B. On July 99, 199, the maximum ○○○, who was working in the ELS Co., Ltd. and in the △△△ Bank, was employed as the vice-director at the Defendant’s Seoul Branch. On December 4, 2001, at the time of introduction of the △△△△△△, he was in charge of marketing related to foreign currency and foreign exchange with the Defendant, and was engaged in the business of attracting time deposits through deposit marketing for Samsung Electronic Co., Ltd., or depositing the Defendant’s surplus in another financial institution instead of the vice-ranking ○○○ head (after, the ○○○ was promoted to the head of the finance division around April 2002, but his duties were suspended due to the misunderstanding of the withholding receipt for the ○○ Private Teaching Institute, as seen below, and was dismissed from the Defendant on July 7, 2003).

C. For the purpose of personal management of the funds of the △△△△△ in order to introduce the △△△△△, the Maximum △△△△△ received the introduction of the △△△△, “The Defendant is more convenient than other banks, more than the interest rates of the △△△△△△△, more than 2 and more than 3 times a year, and more than 1 year, the Defendant is making every effort to manage and make every effort to pay the money.” Thereafter, “The Defendant may have various high interest-interest deposit accounts because he makes an investment in the △△△△△, thereby making it possible for the Defendant to make every contribution to the △△△△△△,” and “There are several high interest-interest deposit accounts opened at the time of the △△△△△△△△△△△△△△△△△△△, and soliciting the Defendant to subscribe to the Defendant’s term deposit by deceiving the △△△△△△

D. △△△△△△ on behalf of the Plaintiffs and ○○ Private Teaching Institutes (hereinafter “○○ Private Teaching Institutes”). From December 7, 2001 to April 24, 2003, 56, 559, 94,760 won were delivered to the ○○○○○○○○ in total under the name of time deposit with the Defendant, and the promissorysory note or a term deposit certificate in the name of the Defendant forged ○○○○○ as the certificate of time deposit (hereinafter “instant promissory note or a term deposit certificate”). The instant promissory note or a term deposit certificate was issued on behalf of ○○○○○○ Private Teaching Institutes (hereinafter “○○ Private Teaching Institutes”). The Defendant branch arbitrarily created 00 copies of the instant certificate of time deposit issued by ○○○○○○○○ in lieu of the instant certificate of time deposit issued by ○○○○○ in lieu of the maximum amount of 00,000, the instant certificate of time deposit issued by ○○○ was not written in detail.

E. The maximum ○○○ explained to this △△△△ that the amount of par value on the instant promissory note or fixed deposit certificate is the subsequent tax amount, and when calculating the interest rate based on the following tax amounts, the minimum amount from March 34 per annum to 84.61 per annum, such as the annual interest rate stated in the attached Form No. 1, is between 84.61% per annum and 201.

12. From around April 2003 to around April 2003, the interest rate on a fixed deposit in a commercial bank was 4.36% per annum to 5.05% per annum (Provided, That the interest rate on a fixed deposit in a commercial bank is based on the deposit amount).

F. As above, the maximum amount received from the △△△△△△△△, and the amount received from other members of the △△△△△△ or persons related to the said members, from December 2001 to June 2003, the 51, 512, 791, and 371 won was incurred in the transaction of stocks, futures, and options, and the △△△△△△△△△△ incurred a total loss of KRW 51, 512, 791, and 371. In addition, in the event the △△△△△△△△△△△△ had the maturity date of the instant promissory note or fixed deposit instrument in order to conceal the said investment, or when the △△△△△△△△△△△, represented by the Plaintiffs and the △△△△△△△△△△△△△△△△△, the △△△△△△△, in the name of the principal and interest of the principal, repaid the money to the △△△△△△△, at the same time.

G. Meanwhile, with respect to the money listed in paragraph (3) of the attached Form No. 3 with respect to an O driving school delivered by △△△ on March 8, 2002, ○○○ issued to △△△△△△ on June 7 of the same year a deposit balance certificate under the name of the Defendant, and a withholding receipt (in the case of a withholding receipt No. 7-1, the amount of subscription was stated as KRW 1,009,94,760, and the amount of subscription was stated as KRW 1,033,817,020 in the name of the Defendant on September 17 of the same year, and transferred KRW 1,033,817,020 in the name of the principal and interest of the above money to ○○○○○○ in the name of the Defendant (refer to the attached Form No. 5).

아. 또한 별지 예금내역 순번 제4항 거래는 이△△이 이○○, 최○○와 함께 있는 자리에서 이○○에게 750, 000, 000원을 교부하고, 이○○으로부터 이○○이 배서한 이ㅇㅇ 외 3인 명의의 약속어음 4매 ( 이○○이 2003. 3. 15. 최○○에게 750, 000, 000원을 교부하면서 수령한 것임 ) 를 교부받는 방식으로 이루어졌다 .

I. However, on May 9, 2003, a certified tax accountant representing the tax affairs of ○○ Institute on behalf of ○○ Institute was aware of the forgery of the above withholding receipt delivered by ○○○○ to △△△△ for the purpose of ○○ Institute in the process of confirming the Defendant in order to refund the interest income tax believed to have been withheld in connection with the money listed in paragraph (3) of the attached Form No. 3. The Defendant became aware of the fact that ○○ was an individual investment of the money received by ○○○ as the name of a fixed deposit against the Defendant in the course of demanding the Defendant to verify the authenticity of the instant promissory note or a fixed deposit certificate on July 23, 2003.

(j) On June 20, 2003, after the fact of forging the above withholding receipt was discovered, the ○○○ issued to this △△△△△ on June 20, 2003 a statement of investment status (Evidence 57) that the Defendant voluntarily prepared, while stating that the funds received from the Plaintiffs are investing in the fund, etc.

(k) Meanwhile, the Defendant only conducted financial transactions (such as wholesale financing business, Wholesal Banking or commercial loaning) with an enterprise larger than a certain scale, and has business guidelines for not conducting financial transactions (retailing) with the general public. However, in exceptional cases where a company requests in connection with corporate financial affairs, there is a case where the receiving of personal information is conducted. On June 26, 2003, the Defendant received 500,000,000 won from the largest ○○○○○○○○ to secure damages related thereto, and issued a fixed deposit certificate (i.e., the certificate) with a face value of 501,217,713 won, 3.5% per annum, 5% per annum, and 8% per annum on July 28, 2003.

C. The Defendant provided maximum ○○ with a total of 32 hours from 1999 to 200, 40 hours from 200 to 2001, 7.5 hours in total between 2001 to 2002, and 1.5 hours in total between 2001 and 2003, and 2.5 hours in total between 2002 and 2003. Meanwhile, the letter of authorization of the head of the Defendant’s branch office was kept in the treasury of the branch office, and the standard form of the Defendant’s document was kept in the credit cooperative managed by two employees, respectively.

(m) As seen above, the maximum ○○○ was indicted on the charges of deceiving the △△△△ and the ○○○, by deceiving the said △△△△ and by forging and delivering the instant promissory note or term deposit certificate under the name of the Defendant, and was sentenced to a conviction of 15 years of imprisonment with prison labor in the first instance trial (Seoul Central District Court 2003Dahap862), and appealed against this judgment, the said conviction was mitigated to 12 years of imprisonment with prison labor in the second instance court (Seoul High Court 2004No250), and the said conviction was finalized by dismissal of the final appeal by the maximum ○○○.

2. Judgment on the main claim

A. The plaintiffs' assertion (1) △△△△△△ was solicited by the last ○○ to subscribe to the term deposit of the defendant, and the defendant paid the money on behalf of the plaintiffs to the last ○○○○ from December 7, 2001 to April 24, 2003, and even if the △△△△△△△△ was deceiving the defendant for the purpose of investing the above money individually, the contract was concluded between the plaintiffs and the defendant as long as the last ○○, who is the defendant's employee, received the above money from the △△△△△△△ with the intent of the term deposit.

(2) Therefore, the defendant is obligated to pay the money stated in the purport of the plaintiffs' claim and damages for delay from the delivery date among the money that the plaintiffs delivered to the plaintiffs as a term deposit.

B. According to the facts acknowledged above, ○○ was for the purpose of personal management of the funds received from the Plaintiffs. However, this △△△△△ on behalf of the Plaintiffs, as stated in the claim column in the attached sheet, following the Defendant’s solicitation for the purchase of the term deposit by the ○○○○○, a employee of the Defendant, issued to the ○○○○ who is an employee of the Defendant, the sum of KRW 52,30,000,000 (hereinafter “the claim amount of this case”) as stated in the attached sheet, and received the instant promissory note or the fixed deposit certificate as the certificate of the relevant term deposit from the ○○○○○○○, barring any special circumstance, and thus, the deposit contract between the Plaintiffs and the Defendant was established.

(2) As to this, the Defendant’s maximum ○○, an employee of the Defendant, received the money from the Plaintiffs on his behalf, not for the Defendant, but for the Defendant. △△△△△, representing the Plaintiffs, knew or could have known that the act of receiving the money for the Defendant was not a serious intention, and thus, the act of ○○○ constitutes the act of ○○○’s maximum △△△, which constitutes the act of making a deposit between the Plaintiffs and the Defendant, and eventually, was not a deposit contract between the Plaintiffs and the Defendant. As such, the Defendant asserted that the act of ○○ was not a true intention, and that the agent’s intention was a breach of trust for his own or a third party’s interest against the principal’s interest or intent. In a case where the other party knew or could have known, the principal was not liable for the act of her agent under analogical interpretation under the proviso of Article 107(1) of the Civil Act. Whether the other party knew or could have known that the agent’s intent was not a true intention or not or not should be determined based on objective circumstances.

It should be reasonably determined (see Supreme Court Decision 2003Da59662, Feb. 26, 2004, etc.). Whether the plaintiffs knew or could have known that the plaintiffs' act was not the truth-finding should be determined on the basis of the standard of this △△△△△, an agent of the plaintiffs, pursuant to Article 116(1) of the Civil Act. (3) First, whether the △△△△ was aware that the △△△ was the fact-finding’s declaration of intention was not the fact-finding

The first instance court and the first instance court court, as follows: Gap evidence 19-13, Gap evidence 19-7, Eul evidence 20-7, Eul evidence 21-19, Eul evidence 25-25, Eul evidence 8-1, Eul evidence 9, Eul evidence 21, Eul evidence 30-3, Eul evidence 73-4, Eul witness mark 000, the first instance court witness mark 000, the first instance court witness testimony (excluding the portion not trusted), the representative of the first instance court and the witness of this △△△△△△△△, the examination results (excluding the portion not trust), and the first instance court.

의 서울출입국관리사무소장에 대한 사실조회결과에 변론 전체의 취지를 종합하면, ① 이△△은 친구인 이○○의 소개로 최○○를 소개받은 후 친목모임인 ' ☆☆☆ ' 에 가입하고 최○○와 함께 여행 목적으로 해외로 출국하기도 하였으며, 최○○에게 노트북 컴퓨터와 텔레비전을 사주기도 하였고, 2002. 4. 경부터는 최○○로부터 자금관리에 대한 상담을 받기도 한 사실, ② 최○○는 이△△으로부터 위 금원을 수령하기 시작할 무렵 이△△에게 이△△이 해외로 출국할 경우 사용할 수 있도록 정기예금에 대한 일부 원금과 이자 합계 1, 600, 000, 000원을 만기에 지급하지 아니하고 홍콩 △△은행 계좌에 특별수익금 명목으로 지급하겠다고 약정한 사실, ③ 이△△은 최○○의 원천징수영수증 위조사실이 발각된 직후인 2003. 5. 31. ㅇㅇ학원이 피고에 대한 어떠한 종류의 예금채권도 가지고 있지 않다는 취지의 확인서를 작성한 것을 비롯하여 피고에 대하여 ㅇㅇ 학원 뿐만 아니라 원고들의 예금채권의 존재를 밝히지 아니한 채 최○○의 홍콩 투자처 등을 확인하다가 위 위조사실이 발각된 때로부터 약 2달이 지난 2003. 7. 23. 경에 이르러서야 피고 사무실을 방문하여 피고에게 원고들의 피고에 대한 예금채권을 주장하기 시작한 사실, ④ 최○○에 대한 수사과정에서 ‘ ☆☆☆ ' 모임의 회원인 김○○ 등은 최○○에게 금원을 예금 목적으로 교부한 것이 아니라 투자 목적으로 교부한 것이라고 진술한 사실, ⑤ 이△△이 2001. 12. 7. 최초로 최○○에게 정기예금 명목의 금원을 교부하였을 때에는 원고들 명의의 위임장, 인감증명서, 법인등록증 등을 교부하면서 예금거래신청서를 작성하였으나, 이후 계속된 금원 교부에 대하여는 예금거래신청서를 작성하지 아니하였고, 최○○로부터 만기에 이른 금원을 지급받을 때에는 예금지급청 구서를 작성하지 아니한 사실을 인정할 수 있다 .

However, the time when △△△△△ first delivers the first money to ○○○ is the maximum time from ○○.

The facts leading up to 30,00 days after the introduction of ○○, and the fact that ○○ received the funds owned by the Plaintiffs by deceiving △△△△, etc. and was prosecuted for personal investment in stocks, futures, etc., and was convicted of the final judgment of conviction. As seen earlier, the fact that ○○ is consistently a person who recommended △△△△ to subscribe to term deposit in the criminal case at the above △△△△△ case, and the fact that △△△ was recognized in paragraphs 1 and 5 above, solely on the basis of the fact that △△△ requested △△△ to subscribe to term deposit in the above △△△△ case, the △△△△△ was acting on behalf of the Plaintiffs, and the △△△△ was acting on behalf of the Plaintiffs to deliver the claim amount in this case

Since it is difficult to view that ○○○○○○○○○○ was paid the money from ○○○○○○○○○○○○○○○○○, and the Plaintiff’s testimony was 6% of the total amount of KRW 100,000,000,000,000,000 KRW 25,000 per annum 20,000,000,000 KRW 30,000,000,000,000 KRW 6,000,000,000,000 KRW 3,000,000,000,000,000 KRW 6,000,000,000,000,000,000,000 KRW 6,00,00,000,00,000,000,000,00,00,00.

C. Sub-committee

Therefore, the plaintiffs' primary claim, which is premised on the validity of a deposit contract between the plaintiffs and the defendant, is without merit.

3. Determination on the conjunctive claim

A. The plaintiffs' assertion

Along on the fact that ○○○○ received money from the △△△△△△△ on behalf of the Plaintiffs in order to manage the money individually for the Defendant, the act of delivering the instant promissory note or a fixed deposit certificate with the payment of money from the Plaintiffs is closely related to the Defendant’s original authority and authority, which is the employee of the Defendant, and the Defendant was negligent in failing to supervise ○○○○ as the user of the largest○○○○○, and thus, the Defendant is obliged to pay the amount equivalent to the amount stated in the claims to the Plaintiffs as compensation for damages under Article 756 of the Civil Act.

B. The judgment on the cause of the claim (1) requires that the Defendant engaged in the business by using the maximum amount of work, and that ○○○○○○, an employee, inflicted damages on the Plaintiffs regarding the execution of the business. The fact that ○○○○○, who works for the Defendant as the Defendant’s employee, inflicted damages equivalent to the amount that ○○○○ paid to the Plaintiffs as a fixed deposit deposit, is as seen above. Therefore, in order to manage the said money personally by ○○○○, it should be examined whether the act of ○○○ received money from △△△△ in order to manage the said money is related to the execution of business affairs. (2) In order to be deemed as an employee’s act, the act does not require internal execution of business affairs, and if it is objectively deemed that the act falls within the scope of business affairs outside the scope of business affairs of ○○○○○ branch, and as such, the act of ○○○○ branch is not an employee in charge of the Defendant’s deposit of the Defendant’s private customer, in principle, within the scope of fixed deposit funds.

C. The defendant's assertion (1) argues that the defendant did not bear the above employer's liability, since he knew or was unaware of the fact that the plaintiffs did not have been involved in the execution of the defendant's business with respect to the highest ○○'s above act, it cannot be recognized as a relation to the execution of business.

Even in cases where an employee's tort appears to fall within the scope of external execution of business affairs, if the victim himself/herself knew, or was unable to know, due to gross negligence, that the employee's act does not constitute an act of supervising the business affairs on behalf of the employer or employer, the employer's liability shall not be imposed on the employee (see, e.g., Supreme Court Decision 2000Da34426, Jan. 10, 200), and first, it is examined whether the △△△△△△△△, representing the plaintiffs, knew that the employee's act was not related to the defendant's execution of business affairs, and it is recognized that the △△△△△△△△△△ was not aware of such fact, and therefore, this part of the defendant's assertion is without merit.

다음으로, 원고들을 대리한 이△△이 최○○의 위 행위가 피고의 사무집행과 관련하여 이루어진 것이 아님을 중대한 과실로 알지 못한 것인지의 여부에 관하여 살피건대, ① 최○○가 피고의 자금부 차장으로 예금업무를 담당하지는 아니한 사실, ② 이스 △이 정기예금의 증표로서 이 사건 정기예금증서 뿐만 아니라 약속어음을 교부받기도 하였고, 최○○가 위조한 이 사건 정기예금증서에는 피고가 발행한 정기예금증서와 달리 인지가 첩부되어 있지 아니하고 이자율의 기재가 없으며, 뒷면에는 약관이 기재되어 있지 아니한 사실, ③ 최○○가 이△△에게 이 사건 약속어음 또는 정기예금증서상의 액면금을 원리금 합계의 세후 금액이라고 설명하였는데, 위 세후 금액을 기준으로 이자율을 계산하면 별지 예금내역 연이율 기재와 같이 최저 연 3. 34 % 부터 최고 연84. 61 % 로 그 편차가 크고, 당시 시중은행의 정기예금 이자율과도 차이가 많은 사실, ④ 이△△이 2001. 12. 7. 최초로 최○○에게 정기예금 명목의 금원을 교부한 때에는 원고들 명의의 위임장, 인감증명서, 법인등록증 등을 교부하면서 예금거래신청서는 작성하였으나, 이후 계속된 금원 교부에 대하여는 예금거래신청서를 작성하지 아니하였고, 최○○로부터 만기에 이른 금원을 지급받을 때에는 예금지급청구서를 작성하지 아니한 사실, ⑤ 최○○는 이△△으로부터 위 금원을 수령하기 시작할 무렵 이△△에게 이스 △이 해외로 출국할 경우 사용할 수 있도록 정기예금에 대한 일부 원금과 이자 합계 1, 600, 000, 000원을 만기에 지급하지 아니하고 홍콩 △△은행 계좌에 특별수익금 명목으로 지급하겠다고 약정한 사실, ⑥ 이△△은 원천징수영수증의 위조사실이 발각된 이후인 2003. 6. 20. 경 최○○로부터 교부받은 금원을 피고가 펀드 등에 투자하고 있다고 이야기하면서 자신이 임의로 작성한 투자현황서 ( 을 제57호증 ) 를 교부받은 사실은 앞서 본 바와 같고, 이에 덧붙여 갑 제1호증의 1 내지 11, 갑 제2호증의 1 내지 17, 갑 제3호증의 1 내지 3, 갑 제21호증의 24, 을 제13호증의 1, 2, 을 제18, 57호증 ( 갑 제1호증의 1 내지 11, 갑 제2호증의 1 내지 17, 갑 제3호증의 1 내지 3은 최○○가 피고 명의로 위조하여 발행한 것이므로, 그 형상을 살펴보는 범위 내에서만 증거로 쓰기로 한다 ) 의 각 기재, 제1심 증인 이○○의 증언, 당심의 원고 회사 대표자 김OO, 원고 회사 대표자 겸 증인 이△△의 각 신문결과 ( 각 믿지 아니하는 부분 제외 ) 에 변론 전체의 취지를 종합하면, ① 이△△이 최○○로부터 정기예금의 이자 명목으로 교부받은 정기예금증서의 만기일이 원금 명목으로 교부받은 약속어음 또는 정기예금증서와 만기일이 서로 다르고, 정기예금증서에는 만기일을 의미하는 ‘ maturity date ' 가 ' maturify date ' 로 잘못 기재되어 있으며, 액면금 단위의 표시가 \ ' 와 ' KRW ' 가 혼재되어 사용되었던 사실, ② 최○○가 이△△에게 이 사건 약속어음 또는 정기예금증서를 교부함에 있어 약정 이자가 원금 명목으로 교부한 약속어음 또는 정기예금증서에 이중으로 기재되어 있고, 그 교부받은 약속어음이나 정기예금증서의 교부 여부가 일관되게 처리되지 아니한 사실 , ③ 시중은행에서는 정기예금의 증표로서 약속어음을 발행교부하는 것이 현행 법규나 금융관행상 허용되지 아니하는 사실, ④ 별지 예금내역 순번 제18, 19항 기재 금원은 원고 이○○ 및 원고 회사가 보유하고 있는 주식을 담보로 대출받은 금원인데, 그 대출금리가 연 6. 85 % 이었던 반면 위 금원을 최○○에게 예치하고 약정한 정기예금의 이자율은 연 17. 62 %, 18. 21 % 에 달하는 사실, ⑤ 이△△은 이 사건 청구액에 해당하는 정기예금의 이자율을 최○○로부터 정확히 설명듣지 못하였고 이를 알지 못하고 있는 사실, ⑥ 이△△이 최○○로부터 만기에 이른 일부 금원을 지급받음에 있어 피고가 발행한 수표를 지급받지 아니하고 다른 은행이 발행한 수표를 지급받거나 최○○로부터 송금받는 등 그 방법이 일관되지 아니하고 통상의 예금지급방법과 다른 사실, ⑦ 정기예금의 경우에는 중도해지가 가능하고, 만기 이후의 이자율이 달라 예금을 예치할 당시에는 예금지급청구일을 알 수 없어 그 지급액을 특정할 수 없음에도, 이 사건 약속어음 또는 정기예금증서에는 만기액이 세후 금액으로 기재되어 있고 이자율의 기재도 없는 사실, ⑧ 정기예금의 경우 그 양도가 제한됨에도, 별지 예금내역 순번 제4항 기재 금원에 대하여는 그 증표로서 이○○ 외 3인 명의의 약속어음 4매를 이○○의 배서 후 교부받고, 위 4인 명의의 예금을 양도받은 것으로 처리한 사실, ⑨ 이△△은 최○○에게 위 금원을 교부하는 동안 피고에게 예금의 진정 여부를 한번도 확인하지 아니한 사실을 인정할 수 있다 .

However, comprehensively taking account of the following facts: (a) evidence No. 5-1; (b) evidence No. 6-1; (c) evidence No. 8; and (d) evidence No. 18-2; and (c) evidence No. 34-3; (b) the Defendant’s Internet homepage indicated that the Defendant would handle retail financial business; (c) the Defendant, as an exceptional case in connection with corporate financial affairs, did not request an individual to receive money at an interest rate of 7% on June 26, 2003; and (d) the Defendant did not know that it was the largest amount of money for the Defendant’s ○○○ △△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△, which was issued by the Defendant’s △△△△△△△△△△△, the Defendant’s maximum amount of money to be distributed to the Plaintiffs.

However, the above negligence of △△△△ was caused by the occurrence and expansion of the plaintiffs' damages, so it is reasonable to limit the defendant's liability, taking this into account, and it is reasonable to view that the scope of liability is 60% of the plaintiffs' damages, taking into account the above all circumstances into account. In addition, the defendant asserts that the defendant's responsibility should be exempted pursuant to the proviso of Article 756 (1) of the Civil Act. Thus, according to the above facts, according to the above facts, the defendant did not have any duty to supervise the maximum amount of ○○○ by 32 hours in total between 1999 and 200, 40 hours in total between 200 and 202, and 7.5 hours in total between 201 and 2002, and 1.5 hours in total to 2003, the defendant did not have any such duty to supervise the office of ○○○, a total of 200 hours in Seoul, and there is no reason to recognize the defendant's duty to keep the seal from the above office.

(3) The Defendant asserts that the Plaintiffs should deduct KRW 110,310,95,95 as creditors during the voluntary auction procedure for real estate owned by ○○○○○, which was repaid by ○○○○○○, as the principal and interest of time deposits, from KRW 1,705,158,068, and KRW 31,250,00 for the Plaintiff ○○○○○, and KRW 310,310,959, which was distributed to the Plaintiff Company, as creditors in the course of the voluntary auction procedure for real estate owned by ○○○○○○○○, and KRW 31,705,158,068 in total among the claims in this case, and KRW 31,250,00 for the Plaintiff ○○○○○, who was repaid by ○○○○○○○○, as indicated in the repayment statement in attached Form 31,250,000 for the total amount of KRW 30,000 for the Defendant 46.

Therefore, it is reasonable to view that ○○○○○○○○○○○ has paid the amount of damages to the Plaintiffs as interest on the instant claim (the amount received as interest on a time deposit regardless of the instant claim shall not be the amount that should be deducted from the claim amount). Moreover, since the amount received in the voluntary auction procedure constitutes partial repayment of damages, it should be deducted from the damages amount. However, where the party liable to compensate for a small amount of damages pays part of the damages after the tort was established, the obligation of the party liable to compensate for the large amount of damages cannot be extinguished within the scope of the total amount of damages, or where the person liable to compensate for damages pays part of the amount of damages to the Defendant, it is difficult to view that the Plaintiffs did not have any obligation to compensate for the small amount of damages to the Defendant in accordance with the above determination of the lower court on July 14, 195 that the Plaintiffs did not have any obligation to notify the Defendant of the maximum amount of damages to the Defendant within the scope of set-off damages for which the Plaintiffs had no obligation to pay the small amount of damages to the Defendant.

D. Calculation of specific amount of damages

Furthermore, the amount of damages that the defendant is liable to pay to the plaintiffs should be calculated in consideration of the ratio of negligence as seen earlier by the plaintiffs, and the amount of damages that the defendant is liable to pay to the plaintiffs shall be 31,380,000,000 won in total (x 60% in 52,30,000,000 won). The amount that the maximum ○○ paid to the plaintiff Lee ○ and this ○○ shall pay to the plaintiff for the interest in relation to the claim amount of this case and the amount that the plaintiff company received through the voluntary auction procedure shall be equal to the ratio of the defendant's fault. The payment of the amount shall be made in accordance with the order of interest and principal as provided in Article 479 of the Civil Act, unless otherwise specified. The specific amount of damages that the defendant is liable to pay to the plaintiffs are as shown in the attached Form.

E. Sub-committee

Therefore, the defendant (1) from September 23, 2004 to September 25, 2004 to the plaintiff company 5,073, 758, 630 won and 4,80,00,000 won among them, and 5% per annum under the Civil Act until January 25, 2006; 20% per annum under the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the next day to the day of full payment; 26,353,678, 201 won and 13,173,68, 981 won among them; 26,353, 678, 201 won and 13, 173, 68, and 981 won to the plaintiff Lee ○.

6. From 16.16. to 16.16. 1, 164, 880, 815 won: from April 1, 2003. 3, 60, 00, 00 won, from December 9, 2002. 1, 554, 749, and 99 won, from May 28, 2003. 1, 80, 000, 2,400, and 8. 5.0% per annum from the following day to 2. 5. 5% per annum; from the 20. 3rd day to the 3rd day of 20. 5% per annum; from the 3rd day to the 3rd day of 20. 5% per annum; from the 3rd day to the 4th day of 20. 5% per annum; and from the 5th day to the 20. 3rd day of 20. 20% per annum.

4. Conclusion

Therefore, the plaintiffs' preliminary claims are accepted within the scope of the above recognition, and the main claims and the remainder of the conjunctive claims are dismissed as they are without merit. Since the judgment of the court of first instance is inappropriate for the conclusion, the part against the defendant who ordered payment in excess of the part accepted by each part of the defendant's appeal against the plaintiffs is revoked, and the plaintiffs' claim against the defendant corresponding to the revoked part is dismissed, and the plaintiffs' appeal and the remaining appeals against the plaintiffs are dismissed as it is without merit. It is so decided as per Disposition by the assent of all participating Justices.