[1] Whether Article 107 (1) of the Civil Act applies mutatis mutandis to an act of acting as an agent in breach of trust (affirmative), and the criteria for determining whether the other party has acted in bad faith or negligence

[2] Whether the fact-finding and the determination of ratio of comparative negligence are matters of full power of the fact-finding court

[1] Even in a case where a true expression of intention is made by an agent and the other party knew or could have known that the intention of the agent was in breach of trust for the benefit of himself/herself or a third party against his/her own interest or will, the principal cannot be held liable for the act of the agent under an analogical interpretation of the proviso of Article 107(1) of the Civil Code. Whether the other party knew or could have known that it is not a true intention of the agent should be determined reasonably based on objective circumstances, such as the process of formation of the expression of intention, its contents, and the effects arising therefrom.

[2] The fact-finding and the ratio of the fault of the parties involved in tort are the exclusive authority of the fact-finding court unless it is deemed that it is considerably unreasonable in light of the principle of equity.

[1] Articles 107(1) and 116 of the Civil Act / [2] Articles 396 and 763 of the Civil Act

[1] Supreme Court Decision 86Da29850 decided Apr. 26, 1996 (Gong1996Sang, 162), Supreme Court Decision 86Da17267 decided Jul. 25, 1995 (Gong1987, 1292) (Gong1988, 78), Supreme Court Decision 94Da29850 decided Nov. 26, 1996 (Gong196, 162) / [2] Supreme Court Decision 93Da1466 decided Nov. 26, 1993 (Gong194, 193), Supreme Court Decision 95Da17267 decided Jul. 25, 195 (Gong195Ha, 295) and Supreme Court Decision 93Da39897 decided Nov. 23, 199 (Gong199, 295)

Mutual Savings and Finance Company (Attorney Yoon Il-young, Counsel for defendant-appellant)

Defendant Partnership (Attorney Final Confession et al., Counsel for the defendant-appellant)

Gwangju High Court Decision 96Na4748 delivered on May 2, 1997

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

The grounds of appeal are examined.

1. On the first ground for appeal

According to the reasoning of the judgment below, the court below, based on the evidence adopted in its judgment, acknowledged the fact that the Plaintiff’s credit cooperative formed the instant regular deposit contract through a series of processes as stated in the judgment of the court below in order to use the abnormal method of lending the name of the Defendant cooperative to the deceased, the representative director of the non-party 1, the non-party 1, the non-party 1, the non-party 2, the representative director of the non-party 2, and as a means to secure interest and security on the amount of loan while lending the instant money to the deceased, the non-party 2, the non-party 1, the non-party 2, the employees of the non-party 1, the head of the non-party 1, the defendant cooperative, the non-party 1, the head of the non-party association, and again, the non-party 1 entered into the instant regular deposit contract through a series of processes as stated in the judgment of the court below.

In addition, although the court below acknowledged the fact that the plaintiff's cause of the claim and the non-party 1's other act of breach of trust is not related to the plaintiff's claim, since the non-party 1, the president of the defendant's association, was subject to criminal punishment by committing multiple acts of breach of trust other than the defendant's association, the plaintiff started a series of acts of breach of trust and entered into the regular deposit contract of this case and recognized a series of facts related to the process of concluding the regular deposit contract of this case. In addition, in light of the facts acknowledged by the court below, it is sufficient to present the deposit related to the non-party 1's other acts of breach of trust and the regular deposit contract of this case to the same extent, it cannot be said that

In addition, the court below acknowledged the fact that the document of this case's regular deposit was made in a form of a deposit passbook, even before the establishment of the online computer network to the defendant association, it cannot be said that there was a violation of the rules of evidence, and since the plaintiff recognized the fact that the plaintiff deposited KRW 920,00,000 to the non-party 1, who is the president of the defendant association, the head of the defendant association, it cannot be said that there was no determination as to whether the document of this case's regular deposit was deposited in the defendant association. Meanwhile, according to the records, although the bill of this case's regular deposit was entered in the bill of this case's name or the name and seal of the defendant association's association, the non-party 1 did not deposit it in the name of the former owner, it cannot be seen that the deposit contract of this case was made in the name of the former owner, and it cannot be seen that the court below did not accept the plaintiff's statement of intention to deposit in the defendant association, which was not a deposit contract for the defendant association.

2. On the second ground for appeal

In a case where the other party knew or could have known that the other party's expression of intention was made by an agent and the intention of the agent was in breach of trust for the benefit of himself or a third party against the principal's interest or will, it shall not be deemed that the principal is liable for the act of the agent under an analogical interpretation of the proviso of Article 107 (1) of the Civil Act. Whether the other party knew or could have known that the other party was not the intention of the agent should be determined reasonably based on objective circumstances, such as the process of formation of the expression of intention between the agent and the other party, the contents thereof, and the effects arising therefrom (see, e.g., Supreme Court Decisions 86Meu104, Jul. 7, 1987; 86Meu371, Nov. 10, 1987; 94Da29850, Apr. 26, 1996).

However, according to the facts established by the court below as indicated in the reasoning of the judgment below, the non-party 1 was attracting deposits from the plaintiff for the purpose of operating private financing business with a high interest rate in his name, not in the name of the defendant association. The non-party 1 had an intention to conclude a loan contract with the plaintiff for consumption on his own behalf, but merely received each regular deposit from the plaintiff and delivered a false certificate to use the credit of the defendant association. Thus, the non-party 1's expression of intent to conclude each regular deposit contract with the plaintiff in the name of the defendant association against the plaintiff is a breach of trust for his own interest against the interests of the defendant association which is the principal. Meanwhile, as determined by the court below, the court below did not accept any abnormal transaction between the plaintiff and the non-party 1 through the director of the defendant association and the non-party 1, as seen above, in order to secure the interest and security of the loan amount, and it is clear that the plaintiff already used the deposit contract with the defendant association as an ordinary deposit account form and it cannot be seen as being in violation of the records.

3. On the third ground for appeal

The fact-finding or the determination of the ratio of negligence of the parties involved in the tort, unless it is deemed that it is clearly unreasonable in light of the principle of equity, is subject to the exclusive authority of the fact-finding court (see, e.g., Supreme Court Decisions 93Da1466, Nov. 26, 1993; 95Da17267, Jul. 25, 1995). Examining the reasoning of the judgment below in light of the records, the court below acknowledged a series of facts, etc. as stated in the judgment of the court below as to the act of breach of trust in this case, and found that it is reasonable to determine 40% of the negligence of the plaintiff involved in the tort in this case as 40% as to the act of breach of trust in this case. Thus, the judgment of the court below is not erroneous in the misapprehension of legal principles as to comparative negligence. The grounds for

4. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the plaintiff-Appellant. It is so decided as per Disposition by the assent of all Justices who reviewed the appeal.

Justices Park Jong-chul (Presiding Justice)