2013Na4579 Damage

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[Defendant-Appellant] Plaintiff 1 and 2 others

[Defendant-Appellant]

1. F;

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10.0

[Defendant-Appellant] Plaintiff 1 and 1 other

[Defendant-Appellant]

Seoul Central District Court Decision 2012Gahap98084 Decided June 13, 2013

April 1, 2014

April 15, 2014

1. All appeals filed by the plaintiffs are dismissed.

2. The costs of appeal are assessed against the Plaintiffs.

1. Purport of claim

Defendants jointly and severally, to Plaintiff A, KRW 113,00,00, and KRW 20,00,000 for Plaintiff B, and Plaintiff C

Moreover, 50,000,000 won, 60,000,000 won for plaintiffs D, and 35,000,000 won for plaintiffs E, and 30,000 won for each of them

B From October 30, 201 to December 30, 2011, 20% per annum, and from January 1, 2012 to October 30, 2012

shall pay 18% per annum and 20% per annum from the following day to the day of full payment.

2. Purport of appeal

Of the judgment of the court of first instance, cancellation of the part against the plaintiffs who ordered payment below

C. The Defendants: (a) each of them, Plaintiff A, KRW 102, 838,80, and Plaintiff B, KRW 15,930,200, and Plaintiff D

47, 803, 900 won, 27, 884, 500 won to Plaintiff E and each of them shall be from October 30, 201 to June 2013.

13. To pay 5% per annum and 20% per annum from the next day to the day of complete payment.

C. From December 6, 2011 to June 13, 2013, Plaintiff C’s KRW 39,838,800 and its amount

5% per annum and 20% per annum from the next day to the day of full payment.

1. cite the judgment of the first instance;

The reasoning of this court’s judgment is as follows: (a) it is not possible to add the judgment on the plaintiffs’ assertion in the foregoing paragraph; and (b) it is identical to the part on the defendants in the judgment of the court of first instance.

2. Additional determination

A. The plaintiffs' assertion

The plaintiffs also asserted that the Defendants were co-defendants of the first instance court, and that they are co-defendants of P, Q, R, S, and T (hereinafter referred to as "Co-defendants of the first instance court") and co-defendants of the first instance court, unless there are special circumstances.

B. Determination

1) There is no dispute over the following facts, or it may be recognized by comprehensively taking into account the overall purport of the pleadings in the entries in Gap's three to nine and Eul's two (including the branch numbers). The U.S., who is a public official of the Jung-gu Seoul Central District Office, invested in the instant business after being solicited to invest in the instant business. The Plaintiffs, U.S. employees, who were U.S. employees, invested in the instant business upon the recommendation of U and V. The Plaintiffs were employees belonging to the business department in which T was the head of the business office, and the Defendants were the head of other business department.

B) The Plaintiffs transferred all investments in the instant business over 1 and 2 occasions, as seen in the table below.

C) The instant company managed the investment funds in the name of P or P through the borrowed account from Q, etc. P, the representative director took charge of the company’s business affairs, Q, who was in charge of audit status, was in charge of the management of the company’s funds, and R and S was in charge of the company’s investment explanation, written contract preparation, and employee education. Therefore, the Defendants did not take charge of the business affairs such as fund management, company investment explanation, etc.

D) The head of the business office appointed P as a method of raising sales staff according to the performance of investments, and participated in the meeting of the head of the business office to inform whether to pay business allowances and encourage attracting investment. However, since the organization management and fund management of the instant company were in general P, the principal decision-making of the instant company was not made at the meeting of the head of the business office, and the head of the business office was unable to participate in the meeting of the head of the business office if there was no performance of the business office, and Defendant K, L, and N did not have any record of performance, but did not appear at the meeting of the head of the business office.

The Defendants merely receive business allowances according to the investment records of investors recruited by the employees of the business department to which they belong, and did not have relation to the investment records of investors recruited by the employees of other business departments.

E) The Defendants were indicted for a violation of the Act on the Regulation of Conducting Unauthorized Receipt of KRW 68,538,101, and 665 from the Codefendants of the first instance trial to the date on October 8, 2008, and from May 14, 2012. P and Q were indicted for committing fraud with the content that they received KRW 35,310,101, and 665 from the investors in total from May 17, 201 to May 14, 2012, even if they did not have any intent or ability to pay money in accordance with the agreement, even if they received an investment other than the said investment.

In the relevant case, the Seoul Central District Court sentenced P on November 30, 2012, five-year imprisonment with prison labor, two-year imprisonment with prison labor for Q, three-year imprisonment with prison labor for a period of one-year imprisonment with prison labor for R and Q, but sentenced the Defendants to a fine of KRW 5,00,000 in consideration of the fact that the Defendants are suffering from economic damage and are faced with difficulties (Seoul Central District Court Decision 201No3462 Decided November 30, 2012).

Defendant L, M, andO appealed against the judgment, and the appellate court reduced the charge against the above Defendants to exclude the Plaintiffs’ investment amount, and subsequently sentenced the Defendant L to a fine of KRW 3,00,000, and a fine of KRW 4,000,000 to the Defendant M andO (Seoul Central District Court Decision 2012No4309, April 25, 2013). The judgment became final and conclusive around that time.

F) From August 30, 201 to December 6, 2011, the Plaintiffs invested in the instant company. The Defendants, other than Defendant N, invested in the instant company at that time, and were included in the Defendants’ fraud crime victim of P and Q. The details of the Defendants’ damage included in the Seoul Central District Court Decision 2012Da3462 decided November 30, 201, and (3) (4) are as follows. Defendant J invested in W in its name (A9-1).

G) Investment in the instant company was made by means of either receiving a return at maturity or re-contracting after making an investment on a six-month or one-year basis with respect to the investment amount. In order to constitute a joint tort by November 16, 201, the maturity return was made when an investor wants to do so. 2) Although the common knowledge of intent or act was not required among the actors, it should be deemed that the act was conducted jointly based on the actor’s intent or negligence, and that there was common cause for infringement of rights and damages to the victim. In order to recognize liability for damages on the ground of a joint tort, it should be clearly stated that each actor’s intentional or negligent act was jointly conducted (see, e.g., Supreme Court Decisions 2007Da4474, Apr. 24, 2008; 2009Da101824, Dec. 9, 2010). 206, each act should be objectively recognized as an independent tort, 2012.

Therefore, in order to be recognized as a joint tort liability for damages caused by the act of fund-raising, it should be said that there is a case where it is recognized that there was common cause for infringement of rights of the victim and damages caused by the act of fund-raising, such as a person who is responsible for direct investment, a person who has induced direct investment, a person who is responsible for management and supervision of the person who has induced direct investment, or a person who takes charge of important affairs such as fund management, investment explanation, etc., or participation in

In addition, in order to assume the aided and abetting as joint tortfeasor in tort by aiding and abetting, there should be a proximate causal relation between aiding and abetting and aiding and abetting person's tort (see Supreme Court Decision 98Da31264, Dec. 23, 1998). 3) In light of the above legal principles, the above-mentioned facts alone are not sufficient to deem that the Defendants committed joint tort by aiding and abetting and abetting the Defendant to the extent that they would be held liable for joint tort against the investment damages of this case along with the Codefendant of the first instance trial, or that they assisted and abetting or breached the duty of omission. The reasons are as follows.

① The Plaintiffs only invested in the instant business upon the recommendation of T, V, and U. In that process, the Defendants did not have been solicited to make investments from the Defendants. The Defendants did not take charge of the instant company’s financial management, investment explanation, etc., and did not obtain economic benefits depending on the Plaintiffs’ investment records.

② Defendant K, L, and N did not appear at the meeting of the head of the business office only because they did not have any record of performance and did not appear as the head of the business office. The meeting of the head of the business office present at the rest of the Defendants merely confirmed the performance of investments, and was merely a meeting to encourage investment attraction, and the Defendants cannot be deemed to have engaged in the act of participating in major decision-making, etc. of the instant company during the meeting. Rather, the status of the head of the business office, such as the Defendants, in the instant company, appears to be merely a flexible position that could be excluded from the meeting of the head of the business office

③ Defendant L, M, andO were sentenced to a fine in the appellate court due to the act of fund-raising without permission, but excluded the act of fund-raising from criminal facts. The remaining Defendants, who did not appeal, were sentenced to a fine due to a violation of the Act on the Regulation of Conducting Fund-Raising Business without Permission, were not prosecuted for fraud. In addition, the Defendants, other than Defendant N, invested the instant company in the amount of KRW 30,000,000, and included the amount of KRW 570,000, and Q’s fraud in P and Q’s criminal facts at the time of their investment in the instant company. From October 8, 2008, when the instant company commenced fund-raising business without permission to make investments to the Plaintiffs from around October 8, 2008, it is difficult to view that the Defendants, at the time of their investment in the instant company, did not ultimately realize the final investor’s investment agreement.

④ In light of the following: (a) the developments leading up to the Plaintiff’s investment in the instant project; (b) the Plaintiff’s investment occurred in a short period of time on 1 and 2 occasions; and (c) the Defendants were not in the position of participating in the Plaintiff’s major decision-making process; and (d) the circumstances in the first instance trial, such as the fact that the Plaintiffs had been involved in the Plaintiff’s investment losses; (b) it is difficult to view that the Defendants jointly participated in the infringement of rights due to the Plaintiffs’ investment losses and the damages; or (c) aiding and abetting the Defendants’ tort, such as P, etc.

3. Conclusion

The judgment of the first instance is justifiable. All appeals filed by the plaintiffs are dismissed.

Judge Lee Gyeong-chan

Judges Lee Jong-tae

Judge Dong-ju