[1] The standard to determine whether there exists a proximate causal relationship between a public official’s official’s breach of duty and a third party’s loss, as a requirement to recognize a claim for damages to a third party, where a public official suffered loss by a third party due to a violation of duty

[2] The meaning of proving "it is impossible to know even though he had exercised reasonable care" as a requirement for exemption of a person liable for damages where the person who acquired securities claims compensation for damages caused by a false statement in the registration statement against the reporter, etc. of the registration statement

[3] In a lawsuit seeking compensation for damages under Articles 125 and 126 of the Financial Investment Services and Capital Markets Act relating to the issuance of bonds (bonds), where it is recognized that the overall situation of the issuing company or the bond market, business fluctuations, etc., other than the unlawful acts such as the false statement in the registration statement, had an impact on the occurrence of losses, whether the amount of damages may be limited on the ground of such circumstance (

[1] Article 2(1) of the State Compensation Act, Articles 393, 750, and 763 of the Civil Act / [2] Article 125(1) of the Financial Investment Services and Capital Markets Act / [3] Articles 125 and 126 of the Financial Investment Services and Capital Markets Act, Articles 396, 750, and 763 of the Civil Act

[1] Supreme Court Decision 93Da30877 Decided June 10, 1994 (Gong1994Ha, 1923), Supreme Court Decision 2000Da34891 Decided April 13, 2001 (Gong2001Sang, 1125) / [2] Supreme Court Decision 2006Da81981 Decided September 21, 2007 (Gong2007Ha, 1656), Supreme Court Decision 2013Da76253 Decided December 24, 2014 / [3] Supreme Court Decision 2006Da16758, 1675 (Gong207Ha, 1606) Decided October 25, 2007

See Attached List of Plaintiffs (Law Firm Jeong, Attorneys Kim Jong-sung et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 200Na14448 delivered on May 1, 2001

Sungdo Accounting Corporation and six others (Law Firm LLC et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2014Na2012933 decided February 5, 2015

The part of the judgment of the court below against the trustee in bankruptcy of the Busan District Savings Bank Co., Ltd. is all reversed, and that part of the case is remanded to the Seoul High Court. The appeals by Plaintiffs 4, 9, 15, 16, 17, 20, 21, 23, 24, 26, and 27 are all dismissed. The costs of the appeal by the above plaintiffs are assessed against the plaintiffs.

The grounds of appeal are examined.

1. As to the grounds of appeal by Plaintiffs 4, 9, 15, 16, 17, 20, 21, 23, 24, 26, and 27

A. As to the first ground for appeal

Article 208 of the Civil Procedure Act provides that a judgment on a party’s assertion and other means of offence and defense should be indicated to the extent that it can be recognized that the text is fair (see, e.g., Supreme Court Decision 201Da87174, Apr. 26, 2012). Therefore, even if no specific and direct judgment on a party’s assertion is indicated in a court judgment, it cannot be deemed an omission of judgment if it is possible to find out that the party’s assertion was cited or rejected in light of the overall purport of the reasoning of the judgment, and even if the court did not actually make a judgment, if it is obvious that the assertion would be rejected, it does not affect the conclusion of the judgment and cannot be said that there was

According to the records, the plaintiffs' assertion that the bankrupt corporation Busan 2 Savings Bank (hereinafter "BB Savings Bank") classified non-performing loans that should be classified as "normal" or "highness" pursuant to attached Table 2 of the Regulation on Supervision of Supervision by Mutual Savings Banks (amended by Act No. 830, Oct. 30, 2008), and accumulated the bad debts allowance under normal classification, but the defendant Sungdo Accounting Corporation was negligent in not discovering the bad debts allowance, is inconsistent with the allegations in the grounds of appeal.

However, the court below's determination that it is difficult to see that Defendant Sungdo Accounting Corporation neglected to perform its duties as an external auditor with respect to the establishment of allowance for bad debts of loans contains the purport of rejecting the plaintiffs' above assertion. Even if such determination was omitted, according to the records, it is clear that the audit method that Defendant Sungdo Accounting Corporation took in order to review the appropriateness of asset quality classification is in accordance with the standards for accounting audit generally accepted as fair and reasonable, and its assertion will be rejected. Thus, the judgment of the court below is not erroneous in the omission of judgment, contrary to what is alleged in the grounds of appeal.

B. Regarding ground of appeal No. 2

In order to recognize the right to claim damages of a third party on the ground of a public official’s violation of an official duty imposed by an Act and subordinate statutes, there should be a proximate causal relationship between a public official’s violation of an official duty and a third party’s loss. In determining the existence of proximate causal relationship, not only the probability of the occurrence of a general result, but also the purpose of the Act and subordinate statutes and other rules of conduct that impose an official duty, or the form and degree of injury, etc. of the harmful act. If the purpose of the Act and subordinate statutes that impose an official duty is not to protect the interests and safety of the members of society, but merely to regulate public interest and internal order of the administrative agency, if a public official suffers damage to a third party on the ground of a public official’s violation of an official duty, it cannot be said that there is a proximate causal relationship between the act of violation of an official duty and the damage suffered by a third party (see Supreme Court Decision 200Da3489

In light of the legislative intent of the Act on the Establishment, etc. of Financial Services Commission, the lower court determined that it is difficult to view that there exists a proximate causal relation between the illegal performance of duties by Defendant Financial Supervisory Service and its employees and the damages suffered by the Plaintiffs who invested in the subordinate bonds of the Busan 2 Savings Bank, on the grounds that the legislative purpose of the Act imposing the duty of inspection and supervision on the Defendant Financial Supervisory

In light of the above legal principles and records, the above determination by the court below is just, and contrary to the allegations in the grounds of appeal, there were no errors by misapprehending the legal principles on proximate causal relation in state liability

C. Regarding ground of appeal No. 3

Article 125(1) of the Financial Investment Services and Capital Markets Act (hereinafter “Capital Markets Act”) provides that “In cases where a purchaser of securities claims compensation for damages caused by a false description, etc. in a registration statement with respect to the registrant, etc. of the relevant registration statement, such purchaser, etc. shall prove that he/she was unable to know such fact despite his/her due care or that the purchaser of the securities was aware of such fact when he/she made an offer to acquire the securities (proviso of Article 125(1) of the Capital Markets Act).” Here, the phrase “it proves that there was a reasonable ground to believe that there was no false description, etc. after conducting an investigation reasonably expected according to his/her personal position and thereafter there was no reasonable ground to believe such fact” (see Supreme Court Decisions 2006Da81981, Sept. 21, 2007; 2013Da7253, Dec. 24, 2014, etc.).

For the reasons indicated in its holding, the lower court determined that the Defendants’ right to guarantee (hereinafter “Defendant’s right to guarantee”) falls under Article 125(1)4 and 6 of the Capital Markets Act; Defendant Korea Credit Rating Co., Ltd.; and Korea Corporate Assessment Co., Ltd. (hereinafter “Defendant’s right to guarantee”) under Article 125(1)4 of the said Act, but did not know that there was a false description, etc. in the registration statement, its attached documents, and the investment prospectus despite having fulfilled due diligence required in their capacity, and thus, it is insufficient to recognize the fact that the documents submitted alone alone did not cause damage to the Plaintiffs by intentionally or negligently doing an unlawful act. Therefore, the lower court did not recognize liability for damages under Article 750 of the said Act.

Furthermore, the lower court rejected the claim for damages under Article 48(1) of the Financial Investment Services and Capital Markets Act due to the violation of the duty to explain, on the ground that it is not recognized that the right to guarantee education was receiving an offer from Plaintiffs 12, 26, and 27, and it is difficult to view that the right to guarantee education was an investment recommendation against the above Plaintiffs, and that the right to guarantee education was recommended for the remaining Plaintiffs except the above Plaintiffs, but the right to guarantee education was not known that the financial status of the Busan 2 Savings Bank was different from the actual one, and it is difficult to deem that the right to guarantee education was not in violation of the duty to explain.

In light of the above legal principles and records, the above determination by the court below is just, and contrary to the allegations in the grounds of appeal, there were no errors by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending

In addition, according to the records, it is obvious that the court below rejected the plaintiffs' assertion that the defendant school guarantee right did not perform the duty of explanation itself as alleged in the grounds of appeal. However, the court below dismissed the plaintiffs' claim for damages due to such violation of the duty of explanation. Even if the judgment was omitted, the defendant school guarantee right cannot be viewed as not fulfilling the duty of explanation itself. Thus, the judgment below did not err in the misapprehension of judgment, which affected the conclusion of the judgment, contrary to the allegations in the grounds of appeal.

2. As to the ground of appeal by the bankruptcy trustee of Busan District Savings Bank, Inc.

A. In cases where a victim was negligent in causing or expanding damage caused by a tort, or where a ground exists to restrict the tortfeasor’s liability, such fact shall be taken into account as a matter of course in determining the scope of the tortfeasor’s compensation. Provided, That where a harmful act is an act of acquisition of fraud, embezzlement, or breach of trust, etc., and the limitation on negligence or liability is recognized, it is not exceptionally allowed to limit comparative negligence or liability only in cases where the harmful act ultimately possesses profits arising from the tort and results contrary to the principles of equity or good faith (see, e.g., Supreme Court en banc Decision 2012Da1146, Sept. 26,

In a lawsuit seeking compensation for damages under Articles 125 and 126 of the Capital Markets Act with respect to the issuance of bonds (bonds), the credit risk of a company issuing bonds or the change in the value of bonds has a very diverse and multiple factors simultaneously, and thus it is extremely difficult to judge when certain specific factors have exercised influence. In light of the fact that it is extremely difficult to determine when and to what extent a certain factors had exercised influence, in addition to the unlawful act such as making a false statement in the registration statement, in a case where it is deemed that the overall situation of the company or the bond market during the period from the time of the acquisition of the bonds to the time of the loss, and the change in the market, etc. are also deemed to have an impact on the occurrence of losses, it is difficult to prove the amount of damages arising from such circumstance on the basis of such circumstance (see Supreme Court Decision 2006Da16758, 16765, Oct. 25, 207, etc.).

In addition, fact-finding or determination of the rate of comparative negligence or liability limitation grounds is, in principle, a fact-finding authority, but it shall not be remarkably unreasonable in light of the principle of equity (see Supreme Court Decision 2007Da76733, Mar. 11, 2010, etc.).

B. In light of the above legal principles and records, it cannot be deemed that the act of false statement on important matters in the registration statement as a securities reporter when issuing subordinated bonds constitutes fraudulent, embezzlement, breach of trust, etc. In addition, it seems that the Busan 2 Savings Bank was not revealed due to window dressing accounting that it was unable to repay the principal and interest of subordinated bonds to the plaintiffs, and external factors such as Gyeonggi 2 Savings Bank's economic stability or real estate market degradation, etc., other than the unsound financial soundness of Busan 2 Savings Bank's financial status, which was not revealed by window dressing accounting, have combined impact on the factors. Such factors are highly dependent on small-amount credit loans and real estate project financing loans issued by Busan 2 Savings Bank, which was issued by the Busan 2 Savings Bank, which was an inherent risk at the time of its acquisition, and thus, it is reasonable to limit its liability by considering the above circumstances in light of the principle of fair division of damages compensation system.

C. Nevertheless, the court below determined the total amount of damages calculated without entirely limiting the liability of the Busan 2 Savings Bank as bankruptcy claims. In so doing, the court below erred by misapprehending the legal principles on the limitation of liability for damages, which affected the conclusion of the judgment. The ground of appeal assigning this error is with merit.

3. Conclusion

Therefore, the part of the judgment of the court below against the trustee in bankruptcy of the defendant Busan District Savings Bank is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. All appeals by plaintiffs 4, 9, 15, 16, 17, 20, 21, 23, 24, 26, and 27 are dismissed, and the costs of appeal by the above plaintiffs are assessed against the above plaintiffs. It is so decided as per Disposition by the assent of all participating Justices on the bench.

[Attachment] List of Plaintiffs: Omitted

Justices Kim So-young (Presiding Justice)