[1] In a case where the customer made an agreement with a financial institution on the terms of the issuance of the bearer deposit certificate and received confirmation from the employee in charge, whether the deposit contract is established (affirmative), and whether the situation where the employee of a financial institution embezzleds the above money or did not issue the certificate of deposit affects the validity of the above deposit contract (negative)

[2] In a case where a customer who wishes to obtain a deposit transaction basic terms and conditions and a certificate of deposit to which the deposit contract is applied transfers funds between the branches of the same financial institution and deposits in the form of “transfer money”, the time when the deposit contract is established

[3] Whether a customer and a financial institution may enter into a deposit contract in the form of an agreement between the customer and the financial institution to pay the maturity payment of the existing deposit contract and issue the certificate of deposit (affirmative), and in such a case, whether the circumstance in which the employee in charge of a financial institution withdraws and embezzled the amount equivalent to the maturity payment already made may hinder the establishment of the deposit contract (negative in principle)

[1] The terms and conditions of deposit transaction and the bearer deposit certificate to which the deposit transaction basic terms and conditions apply can be deemed as a kind of securities in the sense that the beneficiary bank gives an official commendation of the right to claim a deposit based on the deposit contract and the transfer and exercise of the right to claim a return of deposit. However, since the right given by the certificate of deposit is derived from the deposit contract in the form of a deposit contract as above, it is not necessary to issue the certificate of deposit. The customer who wishes to obtain a bearer deposit certificate has agreed with the financial institution as to the issue terms of the certificate of deposit such as the customer deposit amount, maturity, interest rate, maturity amount, and maturity amount, etc., and the customer who wants to receive the certificate of deposit has deposited the money and the financial institution is established upon the confirmation of the employee in charge, and the financial institution bears the duty to issue the certificate to the customer according to the agreement to give an official the right to claim a return of deposit based on the deposit contract, and the contents of the deposit contract can not be considered as reflecting the contents of the certificate of deposit deposit contract without having an influence on the customer's right to claim a return.

[2] Even if the basic terms and conditions of deposit transaction stipulate that “the time when the bank enters into a deposit account” as “the time when the bank withdraws funds from a specific account and transfers funds from another account at the request of the customer, so it is difficult to view that the above provisions of the above terms and conditions apply to the case of transferring funds from the same financial institution by means of “transfer” rather than account transfer between the branches of the same financial institution. When the customer who wishes to issue the deposit contract and the certificate of deposit governed by the basic terms and conditions of deposit transaction makes deposits at any of the branches of the financial institution with the intention of deposit, the transfer of funds from the bank’s bank’s bank’s bank account at the same place without the certificate of deposit is not yet opened and the employee in charge of the deposit office confirms such deposit, the deposit contract is established at that time, and the employee in charge issues the certificate of deposit in accordance with the certificate of deposit issued, and then the deposit account is not established at the time of the issuance of the certificate of deposit.

[3] In a case where a financial institution bears the obligation to return the maturity amount to a customer upon the maturity of an existing deposit contract, the customer and the financial institution may enter into a deposit contract in the manner that the customer and the financial institution agree to issue the certificate of deposit subject to the basic terms and conditions of deposit transaction and the certificate of deposit subject to the terms and conditions of deposit. On the other hand, even if the amount equivalent to the maturity amount to be paid by the employee in charge of the financial institution at the time of the agreement is already withdrawn and embezzled from the account of the existing deposit contract, it is merely withdrawal and embezzlement of funds by the financial institution due to the nature of the deposit contract, which is a kind of deposit contract in the consumption deposit value, and thus, unless there is any circumstance that the obligation to return the maturity amount to the customer of the financial institution is impossible or extinguished, such circumstance shall not interfere with the recognition

[1] Articles 523, 543, and 702 of the Civil Act / [2] Article 702 of the Civil Act / [3] Article 702 of the Civil Act

Korea Land Trust Co., Ltd. (Law Firm Barun, Attorneys Park Jae-sik et al., Counsel for defendant-appellant

National Bank of Korea (Attorneys Son Ji-yol et al., Counsel for defendant-appellee)

Seoul High Court Decision 2006Na106837 decided June 29, 2007

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. As to the establishment of a deposit contract, time of establishment, etc.

A. (1) The term “transferable deposit certificate” subject to the basic terms and conditions of deposit transaction and the bearer deposit contract is a certificate issued by a macrotype bank, and can be deemed as a kind of securities in that the right to claim the return of deposit based on the macrotype deposit contract is given and the possession of the certificate is necessary. However, since the right given by the certificate of deposit is arising from the macrotype deposit contract as above, it is not necessary to issue the certificate of deposit. The customer who wishes to obtain the certificate of deposit does not have to have the right to claim the return of deposit in the form of a macrotype deposit contract. After the financial institution reached an agreement on the terms and conditions of issuance of the certificate of deposit such as customer deposit amount, maturity, interest rate, maturity amount, etc., the financial institution is obligated to establish the macrotype deposit contract upon the confirmation of the employee in charge, and the financial institution is obligated to issue the certificate of deposit upon the agreement to issue the certificate of deposit within the term of the deposit contract, barring any special circumstance, to reflect the contents of the deposit contract as stated in the certificate of deposit contract.

(2) Even if the basic terms and conditions of deposit transaction provide that “the time when the bank enters into a deposit account” refers to the time when the bank withdraws funds from a specific account and transfers funds to another account at the request of the customer, so it is difficult to view that the above provisions of the above terms and conditions apply to the case of transferring funds by means of “transfer” rather than account transfer between the branches of the same financial institution and the same financial institution. When the customer who wishes to receive the certificate of deposit subject to the basic terms and conditions of deposit transaction and the certificate of deposit subject to the certificate of deposit is deposited at any of the branches of the financial institution (hereinafter “deposit”) with the intent of deposit, the transfer of funds at his own deposit account opened at the same place of the financial institution without the deposit account and the employee in charge of the deposit is confirmed such deposit, the deposit contract is established at the time of the issuance of the certificate of deposit and the certificate of deposit cannot be deemed to have been established only when the employee in charge confirms such deposit and issued the certificate of deposit.

(3) In a case where a financial institution bears the obligation to return the maturity amount to a customer upon the maturity of an existing deposit contract, the customer and the financial institution may enter into a deferred deposit contract in such a manner that the customer and the financial institution agree to issue the certificate of deposit subject to the basic terms and conditions of deposit transaction and the certificate of deposit subject to the deposit contract. Even if the amount to be paid at the maturity of the existing deposit contract was already withdrawn and embezzled by the employee in charge of the financial institution at the time of the said agreement, due to the nature of the deposit contract, which is a kind of deposit contract with the value of consumption deposit, is merely withdrawal and embezzlement of funds of the financial institution. Thus, unless there are circumstances that the obligation to return the maturity amount to the customer of the financial institution is impossible or extinguished, such circumstance shall not interfere with the recognition of the establishment of a macrotype deposit

B. According to the reasoning of the judgment below and the record, the plaintiff confirmed and examined the terms and conditions of the certificate of deposit, such as the amount of customer deposit, maturity, interest rate, and maturity payment, etc. presented by the defendant bank, and then deposited the certificate of deposit with the defendant at each of the original deposit points of the defendant bank in accordance with the direction of the non-party 1 at the branch office outside of the defendant bank in charge of issuing the certificate of deposit, etc. 20 billion won on July 8, 2005, 10 billion won on July 11, 2005, and 10 billion won on July 15, 2005, and requested the defendant to issue the certificate of deposit at each of the original deposit points of the defendant bank. The above deposit is issued at each of the above 1 billion won on each of the original deposit points of the defendant bank's deposit accounts with the remaining maturity of 200 billion won on July 8, 2005 and 100 billion won on each of the above receipts issued by the defendant bank.

In light of the above legal principles and the above facts, the plaintiff and the defendant bank agreed on the customer's deposit amount, maturity, interest rate, maturity payment, etc. to be entered in each certificate of deposit to be issued in the future. It is reasonable to view that the plaintiff deposited each of the above money in the defendant bank with the intent of deposit and confirmed each deposit amount by the employee in charge of the defendant bank. The above deposit contract was established in the above amount of KRW 20 billion on July 8, 2005 and KRW 10 billion on July 15, 2005, since the employee in charge embezzled each of the money before the opening of the certificate of deposit and the record of the deposit in the ledger, or when the employee in charge embezzled the money before the opening of the certificate of deposit and the record of the deposit in the ledger, and even if the employee in charge has already deposited the money with the maturity payment of the existing deposit contract to be repaid in the name of the defendant bank as the fund for issuing the certificate of deposit, the above amount of the deposit contract was not established in the above account.

Therefore, the defendant bank is obligated to issue to the plaintiff a certificate of deposit representing the right to claim the return of each deposit, which occurred from the deposit of each corresponding amount upon the formation of the deposit contract. Since the defendant bank did not perform such obligation, the plaintiff may rescind each contract of deposit and the issuance of the certificate of deposit, and the defendant bank is obligated to return each amount deposited to the plaintiff as the restoration of the original state.

Although the judgment of the court below is partially insufficient or inappropriate at the time of explanation of its reasoning, the decision of the court below with the same conclusion is just, and there is no error in the misapprehension of legal principles as to the requirements and timing of formation of a deposit contract. The Supreme Court Decision 98Da29735 delivered on March 10, 200, which is invoked in the ground of appeal, filed a claim based on the certificate of deposit in the form of the certificate of deposit, even though the certificate of deposit in the form of unregistered certificate was not issued actually, and thus, it cannot be invoked in the case different from this case.

2. As to whether the Plaintiff’s employee knew or could have known Nonparty 1’s intention in breach of trust

The Plaintiff’s assertion that Nonparty 2, a person in charge of fund management, knew or could have known Nonparty 1’s intention in breach of trust, and thus, by analogical application of the proviso of Article 107(1) of the Civil Act, the agreement to issue each of the instant macrotype deposit contracts and the certificate of deposit to the effect that the agreement to issue the certificate of deposit representing the right to claim the return of deposit based thereon is null and void. The lower court rejected the Defendant bank’s assertion on the ground that even if Nonparty 2 was in violation of the Plaintiff’s internal rules, it cannot be deemed that Nonparty 2 knew or could have known Nonparty 1’s intention

In light of the records, we affirm the above judgment of the court below as just and there are no errors in the misapprehension of legal principles as to failure or invalidation of contracts due to abuse of power of representation, as otherwise alleged in the ground of appeal.

3. As to whether the Plaintiff’s employee aided and abetted Nonparty 1’s tort

Joint tort refers to any direct or indirect act that facilitates tort, and the interpretation of the Civil Act, unlike the Criminal Act, which places negligence in principle the same as that of an intentional act for the purpose of compensating for damages, is possible by negligence (see, e.g., Supreme Court Decision 2005Da32999, Jun. 14, 2007). However, the negligence in this case should be in violation of such duty of care on the premise that there is a duty of care not to assist the tort.

As to the assertion by the Defendant Bank that Nonparty 2, an employee of the Plaintiff, aided and abetted Nonparty 1’s tort, set off the amount equal to the Plaintiff’s liability for damages, which is the employer, against the same amount as that of the Plaintiff’s damages, based on its reasoning, the lower court rejected the allegation by the Defendant Bank on the ground that, even if Nonparty 2 performed his duties in violation of the Plaintiff’s internal regulations, it cannot be deemed that the said act alone

In light of the above legal principles and records, the above judgment of the court below is just and acceptable, and there is no error in the misapprehension of legal principles as to the establishment of joint tort by negligence aiding and abetting, as otherwise alleged in the ground of appeal.

4. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Sung-tae (Presiding Justice)