(영문) 부산지방법원 2010.7.9.선고 2010나6878 판결

from February 29, 2008 to the service date of a copy of the complaint of this case, 5% per annum from the next day to the service date of the copy of the complaint of this case, and complete payment.

By the day, 20% interest shall be paid at each rate of 20% per annum.

Reasons

1. Objects of adjudication after remand;

The Plaintiff sought the payment of the same amount as stated in the purport of the claim, but the first instance court ruled against the Plaintiff in its entirety. The first instance court rejected part of the Plaintiff’s appeal and rejected 1,396,035 won, and 7,345,929 won from February 29, 2008 to July 15, 2009, 5% per annum, and 20% per annum from the next day to the day of complete payment. The Plaintiff’s remaining appeal (26,590,751 won and 17,140,501 won, and 17,50,501 won from the next day to the 20-year judgment against the Plaintiff were remanded to the court of first instance for 20-year period from February 29, 2008 to July 15, 2009, and only the part of the judgment against the Defendant was remanded to the court of first instance as to 20-year period from the second instance to the day of complete payment.

2. Basic facts

A. On May 2003, the Defendant borrowed KRW 500,000 from thisC, which is a bond company, and issued to thisC a certificate of taxation, resident registration, and five copies of this C1’s certificate of personal seal impression at the request of thisC.

B. On the other hand, on May 22, 2003, thisC prepared an application for loans in the name of thisC1 using documents such as the certificate of the personal seal impression issued by the Defendant, and submitted the certificate of the personal seal impression, etc. of thisC1 to the Plaintiff Company, and received a loan of KRW 25,100,000 from the Plaintiff Company (hereinafter “the instant loan”).

C. As of February 28, 2008, the amount of the instant loan claim by the Plaintiff Company is totaling KRW 37,986,786 (principal KRW 24,486,430 + interest KRW 2,070,959 + delay damages + KRW 11,429,397).

【Ground for Recognition: Facts without dispute, Gap 1 through 9, Gap 15, Eul 2 and 5, the purport of the whole pleadings

3. Determination as to the cause of action

A. The plaintiff's assertion

The Defendant, by using the above documents delivered by the Defendant, knew or could have easily known the Plaintiff Company and other third parties about preventing illegal acts, including the instant loan, by negligence, issued the certificates of personal seal impression, etc. of this C1 to thisC and facilitate the fraudulent loan of thisC. As such, the Defendant, as a joint tortfeasor, is obliged to compensate the Plaintiff for the damages equivalent to the said loan.

B. Determination

The term “aided and abetting” under Article 760(3) of the Civil Act refers to all direct and indirect acts that facilitate a tort, and includes cases where an act of commission is facilitated by a tortfeasor due to omission by which a person obligated to act does not take various measures to prevent it. Unlike the Criminal Act, the purpose of aiding and abetting and abetting such tort is to compensate for damages, the interpretation of the Civil Act, which, in principle, indicates the same as the negligence, is possible by negligence. In this case, the content of negligence refers to a breach of this duty on the premise that the person has a duty of care not to assist a tort, and there is a proximate causal link between aiding and abetting and aiding in order to impose liability as a joint tortfeasor (see Supreme Court Decisions 98Da31264, Dec. 23, 1998; 2009Da2545, May 14, 2009, etc.).

Even if based on the basis of the recognition of the above basic facts, it is difficult to find that the Defendant issued all of the above Chapter 5 certificates of personal seal impression to thisC, and even if all of them were given to thisC, it is difficult to readily conclude that the Defendant assisted and abetted the Defendant’s tort by providing the above documents only when the Defendant knew or could have easily known the Plaintiff Company and other third parties with the above facts and evidence alone.

Therefore, the plaintiff's claim premised on aiding and abetting by the defendant is without merit.

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is justified as it is so decided as per Disposition.