(영문) 대법원 2015.8.27.선고 2014다235554 판결

1. Article 760(3) of the Civil Act imposes joint tort liability on an aiding and abetting person by deeming the aiding and abetting person to be a joint tortfeasor. Aid and abetting refers to all direct and indirect acts facilitating a tort, including not only cases of commission but also cases where a person obligated to act does not take all measures to prevent it, thereby facilitating the commission of a tortfeasor. Unlike the Criminal Act, the interpretation of the Civil Act, which, in principle, indicates negligence as the purpose of compensating for damages, includes aiding and abetting by negligence, and in such a case, the content of negligence is premised on the duty of care not to assist a tort (see Supreme Court Decision 98Da31264, Dec. 23, 1998, etc.).

2. Review of the reasoning of the lower judgment, the evidence duly admitted, and the record reveals the following facts.

A. On May 2, 2010, C prepared a charter party agreement (a evidence No. 3; hereinafter referred to as the “instant lease agreement”) with the Defendant and the Defendant setting the lease deposit amount of KRW 90 million from May 22, 2010 to May 22, 2012 with the term of the lease contract, and submitted the instant lease agreement to Korea Bank (hereinafter referred to as the “Korea Bank”) in order to apply for a charter party loan, after obtaining the fixed date of the instant lease agreement on May 13, 2010.

B. On May 20, 2010, our bank, which was entrusted with a housing finance credit guarantee business by the Plaintiff, concluded a housing finance credit guarantee agreement with the term from May 20, 2010 to May 20, 2012, with the guarantee principal of KRW 49,050,000, and the term of guarantee from May 20, 2010 to May 20, 2012.

On the other hand, on May 19, 2010, before issuing the above housing finance credit guarantee letter, the Defendant prepared and issued to the Bank the confirmation document of the lease contract (Evidence No. 5-2, hereinafter referred to as the "the confirmation document of this case") to confirm the lease contract of this case with the lessee C as a lessor. The confirmation document of this case states that "I will audit if I return the lease deposit to the lessee for the purpose of ensuring the sound operation of the plaintiff's credit guarantee for the stabilization of ordinary people, I will make it known to the branch of the forum of the Bank of Korea by telephone, etc."

C. On May 20, 2010, our bank lent 54.5 million won as security the said house credit guarantee certificate to C, and immediately remitted the said loan to the national bank account under the name of the Defendant as the deposit money for lease of C.

However, on May 20, 2010, the Defendant received a request from C to terminate the instant lease agreement, and did not notify our bank of the same day, and withdrawn all of the loans from the nominal national bank account and paid it to C.

D. After that, as C loses the benefit of the time limit for the above loan obligation, the Bank sought the Plaintiff to discharge the guaranteed obligation under the above Housing Finance Credit Guarantee Agreement, and accordingly, on April 13, 201, the Plaintiff paid KRW 50,434,140 (original wage of KRW 49,050,00 + KRW 1,384,140 + interest rate of KRW 1,384,140) to the Bank. Meanwhile, C was sentenced to a suspended sentence of six months for a crime in relation to the loan of the entire loan of this case at the Seoul Southern District Court (2013No1058, 663(combined)) on September 6, 2013, and the judgment became final and conclusive.

3. We examine the above facts in light of the legal principles as seen earlier.

C was granted a loan by deceiving us bank as if the lease contract under the instant lease contract only for residential stability, and still remains valid, and received a loan from us to obtain a credit guarantee for house loan.

On the other hand, the Defendant, as a lessor, prepared and issued the instant written confirmation to the Bank that provided a loan for the loan of the lease fund by being entrusted with the business of a housing credit guarantee, was aware that the lease contract under the instant lease agreement remains valid, and accordingly, knew of the purpose of the housing finance credit guarantee and the loan of the lease fund, as well as the circumstance that the existence of the instant lease agreement is a premise for the housing finance credit guarantee and the loan of the lease fund. In addition, if the Plaintiff returned the lease deposit to C in order to ensure the sound operation of the Plaintiff’s credit guarantee for the stabilization of ordinary people as stated in the instant written confirmation, the Defendant did not object to the fact that it is known by telephone, etc. at the location of the Bank Square-dong, and instead was

Nevertheless, the Defendant accepted C’s request for termination of the Housing Credit Guarantee and the return of lease deposit in violation of the purpose of the Housing Credit Guarantee and Lease Loan, and returned the transferred loan from the Bank to C, and did not notify us of such circumstances differently from the contents of the letter of confirmation.

Therefore, even though the Defendant did not act in collusion with C as above, the Defendant was involved in the preparation and submission of the instant lease agreement and the instant confirmation document, contrary to the contents of the instant lease agreement and the instant confirmation document, actively cooperates with C in cancelling the instant lease agreement and recovering the lease deposit paid by the deposit borrowed from the loan on a deposit basis, and there is sufficient room to view that C is liable as a joint tortfeasor who aids and abets the above tort by negligence, by neglecting the duty of notification on the refund of the deposit for lease, which is received by the instant confirmation document.

4. Nevertheless, the lower court erred by misapprehending the Defendant’s duty of care on the sole basis of the fact that the Defendant prepared the instant confirmation document and delivered it to our bank, and received loans from our bank on the following day to the account under the name of the Defendant, and rejected the Plaintiff’s assertion of joint tort by negligence on such premise.

Therefore, the lower court erred by misapprehending the legal doctrine on joint tort liability of aiding and abetting by negligence, thereby adversely affecting the conclusion of the judgment. The ground of appeal assigning this error is with merit.

5. Therefore, without examining the remaining grounds of appeal, we reverse the judgment of the court below, and remand the case to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.