[1] Meaning of “battering and aiding” under Article 760(3) of the Civil Act, and whether aiding and abetting by negligence is possible (affirmative)

[2] In a case where Gap loaned shares to Eul for the purpose of withdrawing them by transferring them to Eul's account in the name of the bank in custody of passbook and seal, etc. immediately after the incorporation of the company, but it was at issue as to whether Eul aiding and abetting Eul to acquire the money transferred to the above account by means of a pre-contract transfer due to negligence not investigating and verifying whether Byung's employee of the payment bank for the stock price failed to establish a pre-contract transfer to the above account, the case holding that the judgment below which recognized Byung's joint tort liability was erroneous in the misapprehension of legal principles as to aiding and abetting

[1] Article 760 (3) of the Civil Code / [2] Article 760 (3) of the Civil Code

[1] Supreme Court Decision 98Da31264 delivered on December 23, 1998 (Gong1999Sang, 222), Supreme Court Decision 2005Da32999 Delivered on June 14, 2007 (Gong2007Ha, 1045) Supreme Court Decision 2006Da78336 Delivered on June 14, 2007

Plaintiff

Defendant (Law Firm Squa, Attorneys general LLC et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2009Na92861 decided October 15, 2010

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. In light of the facts and circumstances acknowledged by the evidence adopted, the court below held that, even if the defendant, despite being aware of the fact that the plaintiff extended funds to the non-party 1 for the advance payment of the stock price and attempted to recover the loan immediately after the establishment of the corporation, the defendant conducted the business of withdrawing the stock price and issuing a certificate of payment of the stock price, and it made the plaintiff trust that the plaintiff can withdraw the stock price clearly by informing the plaintiff of the method of withdrawing the stock price instead of the plaintiff, and it was confirmed at the plaintiff's request that it had already joined the Internet banking and it was possible for the non-party 1 to withdraw the money transferred to the account in this case due to the establishment of the subscription transfer through the Internet banking, since the non-party 1 could have sufficiently predicted the possibility of withdrawing the money due to the creation of the subscription payment through the Internet banking, even if the defendant did not have a duty to inform the plaintiff of the financial transaction information from the securities subscription deposit account in this case to the non-party 1 who was not the title holder under the Act on Real Name Financial Transactions and Confidentiality, the defendant was negligent in establishing the deposit account of this case.

2. However, we cannot accept the above judgment of the court below as it is.

A. Article 760(3) of the Civil Act provides that an aided or an assistant shall be deemed a collaborative act, and imposes liability on an aided or an assistant as a joint tortfeasor. Aiding or abetting refers to all direct or indirect acts facilitating a tort, and includes not only cases of commission but also cases of facilitating the commission of a tortfeasor due to omission by a person liable to act, who does not take all measures to prevent it. Aiding or abetting by negligence is possible in the area of civil law where the negligence is deemed as a matter of principle for the purpose of compensating for damages. In this case, the content of negligence refers to a violation of this duty on the premise that the aided or aided or aided has a duty of care not to assist a tort. In order to impose liability on the aided or aided as a joint tortfeasor, there is a proximate causal relation between the aiding or abetting act and the tort by the aided or aided person (see, e.g., Supreme Court Decisions 98Da31264, Dec. 23, 199; 206Da73366, Jun. 14, 2007).

B. Examining the facts established by the court below in light of the above legal principles, the person who is entitled to withdraw money deposited in the account of this case is Nonparty 1, the representative director of the incorporated corporation (the date of the incorporated corporation) and the bank that received stock price requires withdrawal of the stock price by submitting evidentiary data that became the representative director of the incorporated corporation. The defendant, the representative director of the incorporated corporation, along with Nonparty 2, demanded to transfer the stock price to the account in the name of Nonparty 1 established for the payment of the stock price. Thus, it is difficult to view that the defendant transferred the stock price to the account in accordance with the bank regulations because it was difficult to find out the fact that it was difficult to view that the funds were transferred to the account in this case under the name of Nonparty 1 for the purpose of collecting the money transferred to the account in this case after the incorporation of the plaintiff, and that the defendant was not obliged to receive the money deposited in the account of this case's securities transfer deposit or other money transfer from Nonparty 1 to the account under the name of the incorporated corporation, even if he knew that it was not required by the representative director.

C. Nevertheless, the court below held that the defendant has such duty of care. In so doing, the court below erred by misapprehending the legal principles on aiding and abetting by negligence in joint tort, which affected the conclusion of the judgment, and there is a justifiable ground for appeal pointing this out.

3. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Shin (Presiding Justice)