[1] In a case where the existence of property damage caused by a tort is recognized, but it is difficult to prove the specific amount of damage due to the nature of the case, whether the court may determine the amount of damage by taking into account the indirect facts revealed by the result of examination of evidence and the entire purport

[2] The case affirming the judgment of the court below which held that the Korea Deposit Insurance Corporation shall be liable for damages suffered by a financial institution which has been transferred to it due to a manager's breach of duty of care since the Korea Deposit Insurance Corporation's employee is an employer status

[1] Articles 393 and 763 of the Civil Act, Article 202 of the Civil Procedure Act / [2] Article 35-7 of the Depositor Protection Act, Article 14-6 (1) of the Act on the Structural Improvement of the Financial Industry, Article 756 of the Civil Act

[1] Supreme Court Decision 2002Da6951, 6968 decided Jun. 24, 2004 (Gong2004Ha, 1201)

Gyeonggi Mutual Savings Bank (Law Firm Square, Attorneys Park Dong-dong et al., Counsel for the plaintiff-appellant)

Korea Deposit Insurance Corporation (Attorney Political Management, Counsel for defendant-appellee)

Seoul High Court Decision 2003Na8390 delivered on August 10, 2004

Each appeal is dismissed. The costs of appeal are assessed against each party.

1. As to the Plaintiff’s appeal

A. After compiling the adopted evidence, the court below found the facts as stated in its decision, and judged that the promotion mutual savings and finance company that established the plaintiff (hereinafter referred to as the "promotion mutual savings and finance company") did not discover non-performing loans by finding the non-performing loans to believe that the non-performing parties, who are the administrator of the defendant's work, were unable to investigate and examine the actual contents of the non-party's property, without any further investigation or examination. In light of the records, it is reasonable to find the facts in light of the records, and it is not erroneous in the misapprehension of legal principles as to comparative negligence or comparative negligence, and there is no error in the misapprehension of the rules of evidence or the misapprehension of legal principles as to comparative negligence.

On the other hand, the argument in the grounds of appeal that the above mistake of the Promotion Fund cannot be considered in calculating the amount of damages by the plaintiff who is a separate juristic person is not alleged in the court of final appeal, and it cannot be a legitimate ground of appeal against the judgment below, since it is not alleged in the court of final appeal. In addition, since the plaintiff is a company established by investing the full amount of the Promotion Fund for the purpose of transferring contracts to the East Asia Treasury, and the transfer of contracts to the East Asia Treasury is the same company as the Promotion Fund in fact, it cannot be said that the error of

B. After compiling the adopted evidence, the court below found the facts as stated in its reasoning. The defendant calculated the estimated loss amount of the East Asia's Fund as KRW 93.77 billion, not the estimated loss amount at the time of contract transfer, and decided to provide funds only to cover some amount (90 billion of the charges to be paid by the defendant to the insolvent Fund in accordance with the Depositor Protection Act if the insolvent Fund is bankrupt or liquidated). The court below decided the net amount of KRW 70.7772 billion among the methods of assistance that may have the same effect on the loan amount of KRW 165.4 billion, and decided to offer deposit insurance fund bonds as collateral to the defendant every seven years after acquiring the loan fund bonds immediately after the loan amount of KRW 1,65.4 billion. Accordingly, the court below's decision was made on March 30, 2001 to an increase of KRW 1.7 billion by 6 billion, which is equivalent to the average profit rate of KRW 300,500,000,0000,000 won,000 won.

C. In a claim for damages arising from a tort, where it is difficult to prove the maximum amount of property damage, even though the maximum amount of damage was recognized as having occurred, in view of the nature of the case, the court may determine the amount of damage which is the scope of proximate causal relation by comprehensively taking into account all the relevant facts, including the relationship between the parties revealed by the result of examination of evidence and the purport of pleading, the background leading up to the tort and the occurrence of property damage caused thereby, the nature of damage, and all the circumstances after the occurrence of damage (see Supreme Court Decision 2002Da6951, 6968, Jun. 24, 2004).

The court below held that it is impossible to determine the amount of damages as of December 2003, because the interest rate on deposit insurance fund bonds in an amount equivalent to KRW 165.4 billion acquired by the plaintiff has continuously lowered to 4.45% as of September 2003, the interest income actually received by the plaintiff is reduced to 8.04%, which is the interest rate at the time of acquisition. However, the interest rate on deposit insurance fund bonds is not fixed, but changes depending on the average distribution rate of one kind of national housing bonds in the month immediately preceding the starting date of the payment period, and therefore it is impossible to determine the amount of damages as of which 7 years have not passed since the interest rate on the deposit fund bonds in an amount equivalent to KRW 16.4 billion which the plaintiff may receive for 7 years is presumed to be about KRW 5.5 billion, and the court below did not err in misapprehending the legal principles as to the non-party's deposit claims as of KRW 178.46 billion, and it did not err in the misapprehension of the legal principles as to the non-party's property damages.

2. As to the defendant's appeal

A. After compiling the selected evidence, the court below acknowledged facts as stated in its holding, and found that the defendant's act of ordering an insolvent financial institution to manage an insolvent financial institution to a manager under Chapter IV of the Depositor Protection Act, which provides for matters belonging to the defendant's business, is premised on the fact that the defendant's act of dispatching its officers or employees to an insolvent financial institution is a refund for the defendant's business. Since the insolvent financial institution or the person who wishes to transfer its assets and liabilities are essential to reasonably determine the amount of the funds, understanding the actual director's assets and liabilities belongs to the defendant's business; since the Financial Supervisory Commission ordered an insolvent financial institution to suspend all of its business or transfer its contracts, it is essential to determine that the non-party's executive officers or employees should be appointed as the manager of the financial institution; and in light of the legal principles as to the non-party's assets and liabilities, it appears that the defendant, who is the subject of financial assistance from the non-party's manager's employee's duty to take charge of the business affairs of the non-party's employee.

B. The court below held that the non-party, who is a manager of the ASEAN Fund, has a duty to perform his duties on behalf of the purchaser of the insolvent financial institution in accordance with the management manual and the standard of actual asset management as well as the defendant, because the non-party, who is a manager of the ASEAN Fund, is obliged to perform his duties on behalf of the purchaser of the insolvent financial institution in accordance with the management management guidelines and the standard of actual asset management. The non-party, who is a manager of the ASEAN Fund, judged that the non-party is a manager of the ASEAN Fund and the non-party, as a normal credit claim up to KRW 8.235 million,000,000,000,000 as normal credit claims of the ASEAN Fund, and thus, the amount of the ASEAN Fund's losses caused to the non-party's losses due to the plaintiff's negligence in light of the above legal principles and the records.

(c) In addition, the court below found that the defendant violated the guidelines for the management of loans issued by the administrator of the insolvent financial institution and guidelines for the business of the administrator of the insolvent financial institution. The court below found that the defendant violated the guidelines for the management of loans issued by the administrator of the insolvent financial institution by 60 years on the premise that the amount of the loans is 80 billion won or more, and that the records were not recorded in the list of loans held by the administrator of the non-party or the administrator of the non-party, and that the records were not recorded in the list of loans held by the administrator of the non-party or the non-party 60 billion won on the condition that the non-party 6 financial statements were not recorded in the list of loans held by the administrator of the non-party or the non-party 60 billion won on the condition that they were not recorded in the list of loans held by the administrator of the non-party 60 billion won or less on the condition that they were not recorded in the list of loans held by the administrator of the non-party's financial institution. The court below's guidelines for collection of loans are 10%

D. Meanwhile, the court below rejected the defendant's assertion that the agreement on the settlement of accounts is a special agreement to exempt the liability for warranty regarding the transfer of contracts of the Fund of the Fund of the Fund at the time of the application for the acquisition of the Fund of the Fund of the Fund of the Fund of the Fund of the Fund of the Fund of the Fund of the Fund of the Fund of the Fund of the Fund of the Fund of the Fund of the Fund of the Fund of the Fund of the Fund of the Fund of the Fund of the Fund of the Fund of the Fund of the Fund of the Fund of the Fund, and that even in the case where any loss incurred in relation to contingent liabilities and liabilities transferred by the Fund of the Fund of the Fund of the Fund of the Fund of the Fund of the Fund of the Fund is not applied to tort liability unless there is any express or implied agreement between the parties to apply the liability for tort liability due to intentional or negligent act in the actual company of the Fund of the Fund of the Fund of the Fund. In light of the records, the judgment of the court below is justified and there is no violation of law as otherwise alleged in the grounds of appeal.

E. The Plaintiff’s losses incurred due to the Nonparty’s tort are financial gains equivalent to the interest that can be received every three years from the additional acquisition of deposit insurance fund bonds equivalent to additional loans. The interest rate of deposit insurance fund bonds is not fixed, but is changed depending on the average distribution rate of one kind of national housing bonds for the one-month immediately preceding the starting date of the period subject to the payment of interest, and thus, it is impossible to determine the amount of damages at the present when seven years have not passed since it was impossible to determine the amount of damages as above. As such, the Plaintiff’s allegation in the grounds of appeal asserting that the lower court’s action was unlawful on the premise that the average distribution rate of one kind of national housing bonds for the one-month immediately preceding the starting date of the

3. Therefore, each appeal is dismissed, and the costs of appeal are assessed against each party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Shin-chul (Presiding Justice)