Plaintiff (Law Firm Geum River, Attorneys Stabilization-hwan et al., Counsel for the plaintiff-appellant)

New Bank Co., Ltd. (Law Firm Rated, Attorneys Do-ju et al., Counsel for defendant-appellant)

July 15, 2010

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendant shall pay to the plaintiff 50 million won with interest of 20% per annum from the day following the day of service of a copy of the complaint of this case to the day of complete payment.

1. Basic facts

The following facts are either a dispute between the parties, or there is no dispute between Gap's evidence Nos. 1 (cash storage certificate, defendant Bank M&C center manager of the defendant Bank's M&C center manager of the non-party 3 employee, and there is no dispute over the non-party 3 employee reduction, and there is no evidence to acknowledge the authenticity of the whole document. The defendant's evidence Nos. 2 through 5, Gap evidence Nos. 2 through 6 (which is in dispute over the non-party 3 employee reduction part, but the authenticity of the document is presumed to be established as a whole, since it is recognized as identical to the employee reduction of the above evidence No. 1), Gap evidence Nos. 7 (payment guarantee, defendant Bank M&C center manager of the defendant Bank's M&C center manager of the non-party 1 with the certificate of personal seal impression No. 1, and the above manager's evidence No. 11, No. 11, 2, 2, 37, and 5 of the whole document can be acknowledged as a whole evidence of evidence No.

A. The Plaintiff was introduced by Nonparty 4, his own branch, Nonparty 1, who was the head of the Defendant Bank M&C center site, and around September 11, 2009, between 11:30 and 11:39 note 1, the Plaintiff visited the Defendant Bank M&C center and issued KRW 500,000,000 cashier’s checks to Nonparty 1 at the above bank customer counseling room.

B. At this time, Nonparty 1 prepared and sent to the Plaintiff a cash custody certificate with the following contents. Nonparty 1 marked his rubber at the central margin of the said cash custody certificate, and written as “the manager Nonparty 3,” and affixed Nonparty 3’s seal to the manager of the Defendant Bank M&C center, who was in his custody (hereinafter “the instant cash custody certificate”).

- Cash storage certificate -

Manish nives nives 500,000

the above amounts shall be preserved at the appropriate point of receipt on September 1, 2009 at the appropriate office of the State Party.

Storage Period: 15 days from the date of safekeeping

Documents: A copy of a certificate of personal seal impression;

The custodian: Nonparty 1-2) of the site store of the Defendant Bank M&C Center

C. Nonparty 1 received KRW 500,000,000 from the Plaintiff, but did not open an account under the Plaintiff’s name or issue a deposit passbook or a certificate of deposit to the Plaintiff, and did not deposit the said money with the Defendant bank.

D. After that, on September 3, 2009, Nonparty 1 confirmed that he would repay to the Plaintiff KRW 500,000,000 by September 15, 2009. Nonparty 1 issued a written confirmation (hereinafter “instant written confirmation”) with Nonparty 3’s seal and his own seal affixed thereon on the manager of the Defendant Bank M&C Center, who was in his custody after stating “the manager of M&C branch and Nonparty 3 and Nonparty 1 of the said agent.”

E. On September 18, 2009, Nonparty 1 issued to the Plaintiff a certificate of payment guarantee (hereinafter “instant certificate of payment guarantee”) dated September 21, 2009, which became the issue number (hereinafter omitted), certificate number (hereinafter omitted), type of loan security, guarantee amount of 600,000,000 won, guarantee amount of Defendant Bank M&C, Defendant Bank M&C, and guarantee date of payment guarantee (hereinafter “instant certificate of payment”).

2. Both claims;

A. The plaintiff

(1) The non-party 1, as a site store of the Defendant Bank M&C center, was a commercial employee who represents the non-party 3 who is a manager or who has a partial comprehensive power of attorney under Article 15 of the Commercial Act, and received KRW 500,000,000 from the Plaintiff based on his business authority. The Plaintiff and the Defendant entered into a consumption deposit contract or a monetary loan loan contract between the Plaintiff and the Defendant by issuing the instant cash storage certificate, the instant payment guarantee, and the certificate of seal impression. As such, the Defendant is obligated to pay the Plaintiff the amount of KRW 500,000,00

(2) Even if Nonparty 1’s act exceeded his occupational authority, the Plaintiff believed that the Defendant had the authority to act on behalf of the Defendant bank as to the receipt of the deposit by Nonparty 1, and there was a justifiable reason to believe such act, and thus, the Defendant is obliged to pay the Plaintiff KRW 500,000,000 and damages for delay in accordance with the legal doctrine of expression representation under Article 126 of the Civil Act.

(3) Nonparty 1, who is an employee of the Defendant Bank, received KRW 500,000 from the Plaintiff in a way beyond his/her authority and did not pay it to the Plaintiff, thereby causing damage to the Plaintiff. As such, the Defendant Bank, as an employer of Nonparty 1, is liable to compensate the Plaintiff for the damages equivalent to the deposit amount.

B. Defendant

In addition, the defendant does not have any reasonable ground to believe that the defendant was entitled to represent the defendant in cash custody (if the plaintiff stores 500,000,000 won in the defendant bank for 15 days, the transaction that the defendant bank pays interest higher than the market interest rate) of the non-party 1, who is an abnormal transaction behavior that cannot be deemed to be a normal business of the bank, which cannot be seen as a normal business of the plaintiff. The above non-party 1's act has no relevance to business, and even if there is relevance to affairs of the snow, since the plaintiff knew or was gross negligence that the above non-party 1's act was not related to the defendant's business, the defendant is not liable to compensate the plaintiff.

3. Judgment by issue

(a) Whether a contract for a normal deposit is concluded;

In general, in the case of deposits by cash or cashier's checks, deposit procedures are established when a depositor issues cash or cashier's checks to the bank counter, after confirming and receiving the amount of money received by the counter employee, entry and entry in the passbook/certificate, and deliver and return them to a depositor. In such a case, deposit contracts are established when a depositor provides money to a financial institution and a financial institution receives money according to its intent while expressing the intent of deposit (see Supreme Court Decision 74Da646, Apr. 26, 197, etc.).

However, since the contract to make a deposit is different from interest rates depending on the type of deposit, a financial institution will first deliver seals and money necessary for a transaction agreement to a financial institution by specifying which interest rate will be subscribed to a deposit, the financial institution will receive it and deliver it to a specified deposit agreement and confirm the deposit amount to a depositor, and then it will be a general example publicly announced in the financial transaction. In such a case, a deposit contract shall be opened, and it shall be issued to a bank without a certificate of deposit, as long as it has the nature of a deposit contract, it is extremely different from that of a deposit contract to prepare and deliver a "written confirmation of payment and payment" in lieu of a deposit passbook from a depositor. It should be examined as to whether a deposit contract is established in the following special circumstances: (a) since the bank time has passed and it is extremely anticipated that a depositor is able to prepare and deliver a deposit passbook and there is no counter staff, and thus, (b) it should be determined that a deposit contract should be issued temporarily and temporarily in lieu of a deposit contract.

The Plaintiff issued KRW 500,00,000 to Nonparty 1 of the Defendant Bank M&C Center at around 11:30 and around 11:39, the Plaintiff merely opened a deposit account in the Defendant Bank or received the cash custody certificate in the instant case without obtaining a deposit passbook or a certificate of deposit from the Defendant Bank. After this date, Nonparty 1 issued the instant payment guarantee certificate in the instant case on September 18, 2009 (3 days after the payment date). As seen above, there is no evidence to support that the Defendant Bank was unable to issue the Plaintiff with a certificate of deposit or a deposit passbook. Thus, the Plaintiff and the Defendant Bank did not accept the Plaintiff’s claim that the agreement was concluded with the Plaintiff on September 1, 2009, on the premise that the terms and conditions of the instant contract were not in accord with the Plaintiff’s individual deposit custody agreement, but the Plaintiff’s assertion that the agreement was not in force with the Plaintiff and the Defendant Bank’s payment guarantee agreement on the basis that the agreement was not established.

(b) Whether a monetary loan contract is concluded;

The Plaintiff’s act of Nonparty 1 preparing and delivering the cash custody certificate of this case to the Plaintiff and of receiving KRW 500,00,000 from the Plaintiff can be deemed as the act of receiving KRW 500,000 from the Plaintiff’s manager of the Bank M&C center on behalf of Nonparty 3 or concluding a loan contract for consumption between the Plaintiff and the Plaintiff’s representative authority at the site location where the Plaintiff has a partial comprehensive power of attorney under Article 15 of the Commercial Act. Thus, the Defendant asserts that the Defendant is obligated to pay the amount stated in the purport of the claim to the Plaintiff. However, Nonparty 3 as the manager of the Bank, as the Defendant bank, has a comprehensive power of attorney on the business of the Bank M&C center, and pursuant to Articles 27 and 2(1)1 of the Banking Act, and Article 18-2 of the Enforcement Decree of the Banking Act and Article 18-2 of the Banking Act, the Bank may engage in the business of issuing deposits, securities and other debt certificates, lending funds or discount bills, internal exchange, and other business incidental thereto.

C. Whether a representation by expression is established under Article 126 of the Civil Act

Furthermore, as to the Plaintiff’s assertion of the expression agent, it is difficult to find out the following circumstances, i.e., the Plaintiff paid KRW 500,000 to Nonparty 1 without opening a deposit transaction account or obtaining a deposit passbook. The said cash custody certificate is not a document form generally used by the bank. The said cash custody certificate states that “50,000,000 won (50,000) was kept regularly at the first place on September 1, 2009.15 days from the date of storage.” The interest rate was not stated in the Plaintiff’s assertion. ② The Plaintiff received the instant confirmation document from Nonparty 1 on September 3, 2009, and the Plaintiff’s receipt of the instant payment guarantee from Nonparty 1 on September 18, 2009, and it cannot be seen that the Plaintiff was able to have been able to have been able to have been able to have been able to have been able to have been able to have been able to have been able to have been able to have been able to have been 15000, and 1,000.

(d) Whether employer liability exists or not;

The phrase "in relation to the execution of affairs," which is an element for an employer's liability under Article 756 of the Civil Act, means that if an employee's unlawful act appears objectively to be related to the employee's business activities, performance of affairs, or performance of affairs, without considering the offender's subjective circumstances. In appearance, whether it is objectively related to the employee's performance of affairs shall be determined in consideration of the employee's original duties, and the degree related to the employee's unlawful act, and the degree of the employee's occurrence of risks and the degree of responsibility for failing to take preventive measures (see Supreme Court Decision 99Da30367, Oct. 8, 199).

As to the instant case, Nonparty 1, while disclosing the Plaintiff’s status as the site manager of the Defendant Bank M&C center, ordered that the Plaintiff keep KRW 500,000,000,000. The cash custody certificate and KRW 500,000 were prepared at the Defendant Bank M&C center customer counseling room, Nonparty 1 prepared a cash custody certificate after receiving KRW 500,000,000 from the Plaintiff, and delivered it to the Plaintiff with Nonparty 3’s seal affixed to the rubber and the above center manager of the Defendant Bank M&C center who was in his custody, and thereafter, issued the instant confirmation certificate and the instant payment guarantee certificate as seen above. However, it cannot be said that Nonparty 1’s borrowing of money from an individual who is not a financial institution can not be seen as falling under the scope of the Defendant branch office’s execution (see Supreme Court Decision 200, Mar. 29, 197; Supreme Court Decision 2005Da17579, Jul. 29, 20197).

Even if the non-party 1's act of borrowing money objectively seems to fall under the scope of the employer's business, it shall not be liable for employers if the victim knew that his employee's act does not fall under the employer's business or due to gross negligence. Here, the victim's gross negligence can be easily known that the employee's act would not be legitimate within his own authority, but it is hard to say that the other party's duty of care would not be close to the other party's intentional act, and that it is not necessary to protect the other party's duty of care due to the plaintiff's lack of authority to ask the non-party 1's bank's non-party's non-party's non-party business's non-party's non-party business's non-party's non-party business's non-party business's non-party business's non-party business's non-party business's non-party business's non-party business's non-party business's non-party business's non-party business's non-party business's non-party 1's non-party business's non-party business's non-party business's non-party business's non-party business's non-party business's non-party business's non-party business'.

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it appears to be a part of its own, and it is so decided as per Disposition.

Judges Kim Il-so (Presiding Judge)

(1) On September 1, 2009, around 11:38:54 on September 1, 2009, the Plaintiff went to the Defendant Bank M&C Center together with two drivers and Nonparty 1.

Note 2) A seal is affixed to Nonparty 1’s name and the seal is affixed thereto.

3) According to the Plaintiff’s assertion, the Defendant bank’s assertion that it is the Plaintiff’s debtor and guarantor does not comply with business practices.