2013Da95513 Deposits

A Stock Company

Korean Bank, Inc.

B

Seoul High Court Decision 2012Na85382 Decided November 22, 2013

September 10, 2015

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Seoul High Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Regarding ground of appeal No. 1

A. The court below rejected the plaintiff's legitimate authority as to the withdrawal of the share capital of this case from the first account under the name of the plaintiff (hereinafter "the share capital of this case") to the account under the name of the plaintiff (hereinafter "the separate account under the name of the plaintiff") because C transferred the share capital of this case to the account under the name of the plaintiff (M, hereinafter "the first account"). Since the deposit contract of this case was established between the plaintiff and the defendant from that time, the defendant has the obligation to pay the plaintiff the deposit and interest equivalent thereto to the amount of the share capital of this case upon the plaintiff's request for deposit payment. The defendant withdrawn the share capital of this case from the first account under the name of the plaintiff to the account under the name of C (N, hereinafter "the second account") and transferred the amount of KRW 780,532,152 (hereinafter "the share capital of this case"). The defendant's assertion that legitimate deposit payment under the plaintiff's delegation is difficult to view that the plaintiff consented to withdrawal of the share capital of this case or delegated the withdrawal to the defendant.

B. However, it is difficult to accept the above determination by the court below for the following reasons.

1) The reasoning of the lower judgment and the evidence duly admitted by the lower court reveal the following facts.

가) 원고는 2010. 7. 11. C과, 원고가 독일계 헤지펀드인 피터 벡앤파트너로부터 피터 벡앤파트너의 원고에 대한 신주인수권을 인수하는 데 필요한 자금을 C이 투자하고, 원고가 신주인수권을 C이 지정한 투자자들에게 배정하면, C이 그에 따른 주금을 납부하기로 하는 내용의 약정(이하 '이 사건 투자약정'이라고 한다)을 체결하였는데, 여기에는 원고가 C의 투자금액에 대하여 원금을 보장하고, C은 주식을 매각하여 원고 또는 원고와 합의하여 지정한 주식 관리자에게 투자수익의 50%를 지급하기로 하는 내용이 포함되어 있다.

B) On July 13, 2010, C entered into an agreement with G, a bond business entity, to raise funds for investment under the instant investment agreement, with a view to setting a maturity of KRW 9 billion as a collateral for the stocks to be listed in the future, one month from the date of payment, and the interest at 10% per month.

C) On July 19, 2010, the Plaintiff’s staff L, the site site location K, C, and G were gathered in the business consultation room of the Defendant’s head office to process the payment of the Plaintiff’s share price for the issuance of new shares. At that location, K received from G the share price of this case. L entered in the Plaintiff’s account opened, the Plaintiff’s document stating the Plaintiff’s signature, and one sheet prior to the payment with the corporate seal affixed (hereinafter “first payment slip”), and one sheet prior to the payment with the Plaintiff’s signature written, and the employee’s seal affixed (hereinafter “second payment slip”), and C prepared to K one sheet prior to the payment with the Plaintiff’s personal passbook opened, C’s signature written, and affixed the seal affixed at the time of the issuance of the passbook’s name. Meanwhile, K deposited the share price in the Plaintiff’s name.

D) On July 20, 2010, Defendant J branch opened a separate account under the Plaintiff’s name, the first account, and the second account under the Plaintiff’s name, using the first payment slip, withdrawn the stock price from the separate account under the Plaintiff’s name and transfer it to the first account under the Plaintiff’s name, and then, using the second payment slip, withdrawing KRW 780 million from the first account to the second account under the Plaintiff’s name and transfer it to the third account under the Plaintiff’s name, using the third payment slip, and then withdrawing KRW 780,000 from the second account to the second account under the Plaintiff’s name, using the third payment slip, and then, using the third payment slip and the third payment slip, the Defendant’s Intervenor, the chief of the Defendant J branch, sent the instant cashier’s checks that were withdrawn by this method to the P. designated by G.

E) On July 28, 2010, the Plaintiff alleged that the share price of this case was withdrawn without permission at Defendant J Branch and notified that it would file a civil petition without restoring it to its original state. However, the Plaintiff did not separately request C to suspend payment of the instant cashier’s checks.

F) When the Plaintiff’s new shares were listed on the KOSDAQ market on July 29, 2010, G disposed of approximately three million shares among them, and replaced the instant cashier’s checks kept until that time with other cashier’s checks, G appropriated the disposal price of the said shares and the instant cashier’s checks to repay loans to C, and returned approximately seven million shares after settlement to C.

G) Meanwhile, prior to lending funds, G issued a written resolution of the board of directors with the purport of withdrawing the paid-in stock price and offering it as security. On the other hand, G returned the same on the ground that creditors came to C, thereby being offered the cash withdrawn from the account under the Plaintiff’s name, which could cause the Plaintiff to report theft, etc. on the relevant cashier’s check. First, it proposed that the stock price should be transferred from the account under the Plaintiff’s name to the account under C and then withdrawn the cashier’s check and offer it as security.

H) On October 2009, at the time of offering new shares with capital increase, the Plaintiff borrowed 12 billion won from G as security at the time of offering new shares with capital increase, and paid a share price of 12 billion won, the next day, withdrawn the shares and offered the certificate of deposit as security to G.

I) The Defendant’s guidelines for the receipt of the Defendant’s subscription money shall be deposited into the securities subscription deposit account, and in the case of the issuance of new shares, the paid subscription money may be paid at the expiration of the due date even before the registration of alteration.

2) The following circumstances revealed by such factual basis, i.e., (i) the Plaintiff’s main contents of the instant investment agreement with C to raise funds and underwrite new shares, and then distribute profits therefrom. It appears that the purpose of the agreement is to immediately promote the sale of new shares through the issuance of new shares, rather than substantial increase of new shares, and (ii) there is a need for a certain period to list shares after the payment of subscription price, and there is a possibility of lowering the value of the new shares to be issued in the future as collateral, it is difficult to view that G borrowed approximately KRW 9 billion in total without securing any collateral until new shares are listed as collateral. Accordingly, it is difficult to view that there is no special reason to view that G would be more unfavorable than the previous one and lend funds to the Defendant. (iii) The Plaintiff intended to withdraw the instant shares by issuing the board of directors’ resolution to offer the instant shares to C as collateral, and thus, G would have no way to offer the Plaintiff’s new shares to the Defendant for the issuance of new shares under the name of the Plaintiff’s account under the name of C.

2. Conclusion

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

The presiding judge shall keep the record of the Justice

Justices Min Il-young

Chief Justice Park Jong-young

Justices Kim Jae-han