(영문) 대법원 2018.7.24.선고 2018다215664 판결

A. “The date when the victim becomes aware of the damage and the identity of the perpetrator” under Article 766(1) of the Civil Act, which is the starting point of starting the short-term extinctive prescription of a claim for damages due to a tort, refers to the time when the victim actually and specifically recognizes the requisite facts of the tort, such as the occurrence of damage, the existence of an illegal harmful act, and proximate causal relation between the harmful act and the occurrence of damage. Whether the victim actually and specifically recognizes the requisite facts of the tort should be reasonably acknowledged by taking into account various objective circumstances in individual cases and considering the circumstances where the claim for damages is practically possible (see, e.g., Supreme Court Decision 2006Da30440, Apr. 24, 2008). In addition, the employer’s liability for damages occurs when the employer and the person who is in the used relationship with the victim inflict a loss on a third party in connection with the employer’s business performance, and the victim’s awareness of the existence of the offender in this case refers to the fact that the tort was committed between the employer and the tortfeasor (see Supreme Court Decision 208.

B. On February 23, 2011, the lower court, based on the circumstances indicated in its reasoning, found that the Defendants’ employees had led the instant market price manipulation through the announcement of the investigation results by the Financial Services Commission, etc., and the media reports, recognized the existence of the illegal market price manipulation, and the proximate causal relation between the said market price manipulation and the damages, and determined that there was no hindrance in filing a lawsuit seeking damages compensation for reasons of employer’s liability against Defendant Doz Bank. The instant application for conciliation was accepted on January 25, 2016, and thus, dismissed the Plaintiffs’ defense that the Plaintiffs’ claim for damages expired by prescription.

C. However, according to the reasoning of the lower judgment and the record, the following circumstances can be revealed. (1) The Financial Services Commission and the Financial Supervisory Service, on February 23, 201, upon the employees of the affiliate company of the Defendant Dota Bank, decided to file prosecution complaints and sanctions against the relevant person as the employees of the affiliate company of the Defendant Dota Bank confirmed the fact of market price manipulation. The prosecutor announced that the Defendants’ employees and the Defendant Dota Securities were indicted for market manipulation under the Financial Investment Services and Capital Markets Act on August 19, 201, and the prosecution announced that the Defendants’ employees and the Defendant Dota Securities were indicted for the alleged fact of market manipulation under the Financial Investment Services and Capital Markets Act. Although the media reports and domestic financial institutions, insurance companies, and foreign investors filed lawsuits for damages, it is difficult to readily conclude that the Plaintiffs, other than professional investors, were aware of the facts known to the Financial Services Commission,

2) The Defendants’ findings of the investigation by the Financial Supervisory Service, etc., and the prosecution’s announcement and media reports were strongly denied and disputed, and the employees of the branch offices of the Defendant Dom Bank were convicted of the first instance court on January 25, 2016 only for C and Defendant Dom Securities, by escaping abroad.

3) In order to determine the illegality of the instant market price manipulation, there is a need for specialized knowledge of the COS 200 and the index fluctuation, and there was a dispute over the existence of the illegal market price manipulation, and only the text of the instant criminal judgment was 82 pages, it cannot be readily concluded that ordinary people recognized the existence of the illegal market price manipulation and the proximate causal relation between the pertinent market price manipulation and the loss before the pertinent criminal judgment was rendered. 4) The Defendants were arguing about the existence of civil liability for damages, and the judgment of the first instance court, which recognized the Defendants’ employer liability around November 26, 2015, began to be sentenced.

5) Since Defendant Dom Bank was excluded from those subject to sanctions by the Financial Services Commission or the Financial Supervisory Service and the prosecution, it is more unreasonable to conclude that the Plaintiffs, who are not a specialized financial investment business entity, could have known the employment relationship between the employees of Defendant Dom Bank B and Defendant Dom Bank prior to the pronouncement of the first instance judgment in the above civil case.

D. Examining the aforementioned circumstances in light of the legal principles as seen earlier, it cannot be deemed that the Plaintiffs actually and specifically recognized the existence of illegal harmful acts, which occurred around February 23, 201, or August 19, 201, such as announcement of the investigation findings by the Financial Services Commission, etc., prosecutions, press reports, etc., or the existence of such harmful acts and proximate causal relation between the harmful act and the occurrence of damages, or the relation of use.

In so doing, the court below erred by misapprehending the legal principles as to the starting point of the extinctive prescription period for damage liability arising from a tort, thereby affecting the conclusion of the judgment. The ground of appeal assigning this error is

2. Regarding ground of appeal No. 2

Based on the circumstances stated in its reasoning, the lower court determined that the Plaintiffs were relatively abundant in understanding and experience in the financial instruments market even though they are not professional investors prescribed in the former Capital Markets Act.

Examining the relevant legal principles and records, the lower court did not err by misapprehending the facts against logical and empirical rules, contrary to what is alleged in the grounds of appeal.

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.