2013 Doz. 10659 Compensation (as referred to in this paragraph)

A Stock Company

Law Firm Chungcheong, Attorney Jeon-soo et al.

[Defendant-Appellee]

1. B

Attorney Jeong-young et al., Counsel for the defendant

2. C

November 18, 2014

December 11, 2014

1. The plaintiff's claims against the defendants are all dismissed.

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

The Defendants jointly and severally serve on the Plaintiff KRW 205, 509, 155 and a duplicate of the instant complaint.

D. The payment of 20% interest per annum from the following day to the date of full payment.

1. Basic facts

A. The Plaintiff is a company established for the purpose of manufacturing and selling various kinds of fruit products. 2) Defendant B served as an operating employee at the 1st place of business within the Plaintiff’s border around January 1, 2013, and up to October 2, 2013, Defendant C was in charge of selling the fruit products produced by the Plaintiff to the customer and collecting the price thereof. 3) Defendant C is the mother’s friendship with Defendant B, and is the fidelity guarantor of Defendant B against the Plaintiff.

B. The Plaintiff’s bond management rules, etc., and Defendant B’s implementation note 1) set forth the bond management rules, the disciplinary action and compensation standards against the persons involved in the accident, and the Plaintiff reported to be engaged in dumping, selling at discount in excess of the designated discount rate, and selling virtual sales (the sale would be made by pretending that there was no actual transaction, and eventually, it would be made a large volume of sales through dumping). Accordingly, Defendant B’s signature on January 1, 2013 on the part of the Plaintiff, “ at the time of entry into the Plaintiff, a letter of observance of compliance with the provision of the Company and the use of the agreed mutual aid” (Evidence 7). The above implementation note contains that the Plaintiff did not make any changes in the sales target.

[Grounds for Recognition] Unsatisfy, entry in Gap evidence Nos. 4 through 7 (including each number, if any) and the purport of the whole pleadings

2. Determination as to the plaintiff's claim against the defendant B

A. Summary of the parties' assertion

1) The plaintiff's assertion

Defendant B suffered losses equivalent to the amount of embezzlement by arbitrarily appropriating the amount of credit paid from the business partner without paying to the Plaintiff, or by selling the goods at an abnormal level, such as dumping, in violation of the Plaintiff’s business performance standards, and caused damages to the Plaintiff to prevent the Plaintiff from withdrawing the goods at a discount rate set by the Plaintiff. This constitutes tort against the Plaintiff. Defendant B is liable to pay the Plaintiff the amount of damages incurred to the Plaintiff, which corresponds to the Plaintiff’s shortage of sales, as compensation for the damages incurred to the Plaintiff, and damages for delay. 2) Defendant B’s assertion

Defendant B does not have embezzled by arbitrarily using the discounted credit payment from the customer. However, there is a fact that there was a shortage of computerized sales by dumping, selling virtual sales, etc., but it is also the reason why the Plaintiff forced the business members including Defendant B, to achieve the objective of usual sales. Therefore, it is unreasonable for the Plaintiff to seek compensation for the damages.

B. Determination

1) As to the assertion of damages caused by embezzlement

The statements in the evidence Nos. 1, 2, and 3-1 through 12 are insufficient to recognize that Defendant B received money equivalent to the shortage of sales claimed by the Plaintiff and used it at will, and there is no other evidence to acknowledge this otherwise. Accordingly, the Plaintiff’s claim for this part is without merit. (2) If the Plaintiff’s claim for damages arising from breach of trust occurred, (1) if the business member of the company bears an official duty to comply with the discount rate set by the company at the time of selling the product, and the difference arises due to the act such as selling the product at a lower price than the designation authorized in violation of such duty, the company suffers property damage (see Supreme Court Decision 2010Da4332, Nov. 25, 2010). The business member is liable to compensate the company for damages incurred by the company.

Comprehensively taking account of the purport of each statement in Gap's evidence Nos. 12 through 14 and Eul's evidence Nos. 1 through 8 (including each number, if any), the plaintiff's employees set a discount rate that should comply with when they sell the products. The defendant Eul sold the products as the plaintiff's employees, without complying with the discount rate set by the plaintiff in violation of the plaintiff's duty as a member of the plaintiff's business, and without complying with the plaintiff's duty as a member of the business, and then entered as if they sold the products at the arm's length price, and then entered as if they sold them at the arm's length price, and then made a shortage in sales. (2) On the other hand, Eul's each statement in the evidence Nos. 1 through 10 (including each number, if any) can be acknowledged as follows, comprehensively taking into account the purport of the whole pleadings

① The Plaintiff: (a) assigned monthly sales targets and daily sales targets to the head office and branch offices; (b) urged sales employees to achieve the goals by differentiated payment of wages and sales promotional expenses (in accordance with the achievement rate of sales targets and deposit rates of goods; (c) the head of the sales office allocates the daily goals to the employees of the relevant business; and (d) required to report the sales rate and sales volume through message from time to time to time; and (e) took pressure to keep the employees out of the sales until reaching the sales volume when the employee fails to achieve the daily sales targets during the period of his/her retirement.

② The Plaintiff (the head of a business office) forced a business employee to enter virtual sales (not selling actual products to a business partner but entering them into sales to a business partner by electronic means) in order to raise business performance without being able to receive inventory, etc. when the business employee fails to achieve the actual sales goal, and forced the business employee to enter virtual sales (including sales to a business partner by electronic means, inventory, etc.) into a virtual sales unit, and the products sold on a virtual basis were owned by the business employee.

③ In order to pay the sales proceeds of products made by virtual sales to the Plaintiff as above, business partners have sold the products at a low price to customers, etc., and the shortage of deposits due to the difference between the arm’s length price and the dumping price has been covered by the loan from the buy or financial right, etc.

④ If the sale proceeds are not covered by the above methods, the Plaintiff has received a memorandum or a letter of repayment stating that the phrase, such as 'disforcing some of the money received as sales proceeds,' and 'for repayment of the useful money incurred at the time of his/her employment,' without any particular investigation into the business members or the business partners, 'for the payment of the useful money incurred at the time of his/her employment', without any further investigation into the business members or the business partners.

⑤ In order to avoid the above virtual sales, business partners sold (dumping sale) products to customers by applying discount rates that the Plaintiff designated, and entered the sales by applying discount rates designated by the Plaintiff in the computer, and then dealt with the difference between the supply price and the actual goods price through the lending, etc. or the sales shortage that was not received from the business partners, and the Plaintiff also set up and set up a note of misappropriation of public funds or a statement of repayment.

④ Defendant B continued to obtain a loan from a branch or a financial right due to the above virtual sales, dumping sales, etc., and, after withdrawal from the Plaintiff, it was impossible to cope with the said loan, etc., Defendant B filed an application for individual rehabilitation with the Seoul Central District Court 2013da00000 on November 4, 2013.

7) The Plaintiff: (a) sold products with low sales volume or with imminent expiration of the period of circulation forced sales to its members; (b) sold the said products at retail stores; or (c) sold the said products at retail stores; (d) sold the said products on a virtual basis; and (e) received the said products to deposit the sales proceeds of the products with loans, etc.

8) The Plaintiff, including Defendant B, has filed a civil suit against the business members in the event that the business members, including the Defendant B, were unable to cope with such compensation for losses, were urged to collect a report on the current status at the time of individuals from the business members and make them repay the said losses after the retirement and fail to repay the same.

9) Meanwhile, the Plaintiff sold products to major discount stores, including Emarts by applying a discount rate of 43% or more, while selling them at retail stores. However, retail stores, which became aware of such fact, demand business operators to apply the same discount rate as a major discount store. In such a case, retail stores demand business operators to sell products by applying the same discount rate as a major discount store. However, the Plaintiff’s computer network may not apply a discount rate higher than the designated discount rate, and the sales price is ultimately recorded as an electronic dumping sales, and the sales price is ultimately borne by the head of the business office or its employees.

The following circumstances revealed through the above recognition, namely, ① the Plaintiff’s products that were not sold while shipping all of the goods of the allocated amount set by goals from the business members and selling all of their inventory, was collected from the business members through virtual sales, and neglected losses of the business members by demanding them to use public funds and pay notes from the business members. ② Even if Defendant B et al. operated virtual sales as above, it seems that the above business members did not inflict losses on the Plaintiff, but did not appear to have been in accordance with the Plaintiff’s inventory management policy or the Plaintiff’s business office sales performance, and it is difficult for the Plaintiff to find that the Plaintiff had received more piece rates from the above business members after the above virtual sales. However, in light of the fact that Defendant B et al.’s profits were not enough to acknowledge that the Plaintiff’s profits were accrued from the sales of the goods to be deposited by the business members from the date of virtual sales, and that the Plaintiff could not be found to have recovered from the sales of the goods to the date of the above sales of the goods.

Therefore, the Plaintiff’s claim against Defendant B is without merit without further review [in light of the following: (a) the signature of Defendant B is not written in the current status of personal re-issuance of the evidence No. 1; and (b) the Plaintiff’s internal computerized data (Evidence No. 2) which appears to be the basis of the current status of re-issuance of the said personal data and the entry of the certificate of the balance of each credit sales (Evidence No. 3) are inconsistent with each other, it is insufficient to recognize that the Plaintiff suffered damage equivalent to the amount claimed by the Plaintiff.]

3. Determination as to the Plaintiff’s claim against Defendant C

1) Summary of the Plaintiff’s assertion

Defendant C is a fidelity guarantor against Defendant B, and is responsible for compensating the Plaintiff for damages equivalent to the shortage of sales incurred to the Plaintiff in the course of performing his duties. 2)

Defendant C caused damage to the Plaintiff during the period of his service to the Plaintiff.

The fact that the fidelity guarantee was made with the defendant B to bear the civil liability jointly and severally with the defendant B is as seen earlier.

However, as seen earlier, Defendant B’s civil liability against the Plaintiff is not recognized, the Plaintiff’s claim against Defendant C premised on this premise is without merit without further review.

4. Conclusion

Therefore, the plaintiff's claim against the defendants of this case is dismissed in its entirety as it is without merit. It is so decided as per Disposition.

Judge Lee Jong-chul

Judge Cho Han-hoon

Judges Lee E-young

1) From June 24, 2007, he/she joined a neglected system and a stock company and worked as a business employee. The merger between the Plaintiff and the neglected system and the stock company on January 24, 2013.

1. A new employment contract seems to have been concluded as a person;