[1] The standards for finding facts or determining the ratio of comparative negligence or limitation of liability, and whether the perpetrator may be exempted from liability for damages (negative in principle)

[2] The case holding that the judgment below which exempted Eul from liability for damages was erroneous in the misapprehension of legal principles in a case where Eul bank's sales of the above business site exceeded loan claims, and Eul bank claimed damages against Eul, in a case where Eul bank's sales of the above business site exceeded loan claims, and Eul bank borrowed a loan to Byung corporation as collateral in violation of Eul's bylaws, and Byung bank was subject to the disposition of transaction suspension; Byung bank sold the above loan claims to Eul; and Eul bank sold the above business site in excess of loan claims

[1] Although determining the fact-finding or ratio with regard to comparative negligence or limitation of liability is a matter of fact-finding authority, it shall not be unreasonable in light of the principle of equity, and in particular, exempting an offender from liability for damages does not differ from practically denying the offender’s liability for damages. Thus, barring any special circumstance such as where the damage suffered by a tort was actually recovered in full or it is reasonable to impose the damage entirely on the victim, the perpetrator’s liability shall not be arbitrarily exempted.

[2] The case holding that in a case where Party A, who was the head of the branch office of Party B, offered a loan to Party B as collateral in violation of Party B’s internal regulations, and Party B, who was subject to the disposition of transaction suspension, sold Party B, together with a beneficial interest certificate, etc., which was a collateral, after setting a fixed amount of loan claims and thereafter, Party B claimed damages against Party B as the project site was sold in excess of the above loan claims, the case held that the judgment below erred by misapprehending the legal principles that Party B’s liability for damages should be exempted, on the grounds that the sale of the project site in excess of the above loan claims was two years and eight months after the sale of loan claims and the increase in the land price in the project site was reflected in the sales price after two years and eight months after the sale of loan claims, and the sale price was less than the set price in the project site was not sold at a lower level than the set price at the time of the sale of loan claims.

[1] Articles 396, 750, and 763 of the Civil Act / [2] Articles 396, 750, and 763 of the Civil Act

[1] Supreme Court Decision 2010Da52126 Decided October 28, 2010

Han Bank Co., Ltd. (Law Firm Sejong, Attorneys Yellow-ho et al., Counsel for the plaintiff-appellant)

Defendant

Supreme Court Decision 2007Da10627 Decided November 25, 2010

Seoul High Court Decision 2010Na115296 decided June 23, 2011

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

The grounds of appeal are examined.

1. Although determining the fact-finding or ratio with respect to comparative negligence or limitation of liability is a fact-finding authority, it shall not be unreasonable in light of the principle of equity (see Supreme Court Decision 2010Da52126, Oct. 28, 2010). In particular, exempting an offender from liability for damages does not differ from practically denying the perpetrator’s liability for damages. Therefore, barring any special circumstance such as where the victim’s damage was substantially recovered in full or it is reasonable to impose the damage entirely on the victim, the perpetrator’s liability shall not be arbitrarily exempted, unless there are any special circumstances, such as where the tortfeasor’s damage was actually recovered

2. Comprehensively taking account of the evidence adopted by the court below: ① The defendant, who was the head of the Government of the plaintiff's branch, sold the instant land at KRW 15,360,000 for loan 10 to the Korea Land Trust Co., Ltd. (hereinafter "Korea Land Trust") at KRW 20,000 for the purpose of sale of the instant land at KRW 80,00,000, KRW 20,000 for the purpose of sale of the instant loan claim at KRW 10,00,000, KRW 20,000 for the purpose of sale of the instant loan claim at KRW 10,000,000, KRW 20,000,000, KRW 20,000,000 for the purpose of sale of the instant loan claim at KRW 12,875,176,20,000 for the purpose of sale of the instant loan claim at KRW 20,000,00.

Furthermore, the lower court determined that the Defendant’s liability for damages should be exempted, based on the following factors: (a) the damages incurred by the Plaintiff from the instant loan amounting to KRW 4,795,326,204, which is the balance obtained by deducting KRW 8,079,850,000 from the fixed value of the instant loan claim from KRW 12,875,176,204; (b) the amount in excess of the amount of the instant loan claim by the security after the sale of the instant loan claim was recovered; (c) the amount of the instant loan claim appears to have contributed to increasing the sales price of the entire bonds sold together with the instant loan claim as a relatively superior bond; and (d) the fact that it is difficult to conclude that the instant loan claim was sold separately and separately from the fixed value

3. However, the following circumstances acknowledged by the legal principles as seen earlier and the facts and records as revealed by the court below, i.e., (i) sale of the instant land for KRW 14,420,800,00 in excess of the instant loan claims by the Plaintiff at the time of sale to G.E. Capital, the sales price seems to reflect the increase in the land price of the instant land after two years and eight months have passed since the Plaintiff sold the instant land for the instant loan claims. The instant land for the instant project was not sold KRW 8,020,560 at the time of the Plaintiff selling the instant loan claims to G.E. Capital; (ii) the appraised value of the instant loan claims set by the financial adviser was KRW 10,729,000, and the amount of the loan claims set by the Plaintiff and G.I.D. Capital was significantly less than 8,079,800, and the amount of the loan claims set by the Plaintiff could not be considered to be less than 127,1267,2700.

Nevertheless, the court below erred by misapprehending the legal principles as to exemption from liability for damages, and the ground of appeal assigning this error is with merit.

4. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded 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.

Justices Park Poe-young (Presiding Justice)