(영문) 부산지방법원 2009.1.8.선고 2008가합7720 판결

1. The defendant shall pay to the plaintiff 85,017,884 won with 5% interest per annum from September 6, 2007 to January 8, 2009 and 20% interest per annum from the next day to the day of full payment.

2. The plaintiff's remaining claims are dismissed.

3. 7/10 of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

Purport of claim

The defendant shall pay to the plaintiff 300,000,000 won with 5% interest per annum from the day following the delivery of the complaint of this case to the day of the decision and 20% interest per annum from the next day to the day of full payment.

Reasons

1. Basic facts

The following facts may be admitted if there is no dispute between the parties, or if there is an additional statement between Gap1 through 3 (including a serial number; hereinafter the same shall apply), Eul 1 through 4, and 9 through 14, or a witness's testimony added to the whole purport of the pleadings:

A. While running a company that produces machinery for vessel and engines for large vessels, from around 1998, the Plaintiff deposited company funds with Defendant Company from around 1998 to make investment in beneficiary certificates, the Plaintiff opened a stock transaction account at the early 10th of October, 199 and deposited 30 million won in the said account at the beginning point of the Defendant Company with the recommendation of Defendant Company B, who had been in charge of the Plaintiff’s deposit and beneficiary certificate investment transaction, and started stock transaction by comprehensively entrusting the management and operation of the said account to Defendant Company C, who was the vice head at the early 10th of the Defendant Company.

B. After that, the Plaintiff deposited KRW 100 million in addition to the Defendant Company on two occasions on December 14, 199 and April 28, 2000, pursuant to the Defendant Company’s promise to guarantee losses, but incurred losses in most of the principal amount. On July 2001, the Plaintiff was offered a proposal to recover the investment losses suffered by the Plaintiff due to C, at least, by leaving the Defendant Company, who worked at the Defendant Company’s written branch, to believe that he/she was himself/herself.

C. Accordingly, the Plaintiff cancelled two accounts opened at the Defendant Company on July 18, 2001, and transferred KRW 511,986,831 to the said written account (the account number, and the account number on November 5, 2001 thereafter, transferred to the business account of the Defendant Company’s head office on July 15, 2002, but all of the shares were transferred to the Defendant Company’s head office and managed by A; hereinafter “instant shares account”). On August 21, 2002, the Plaintiff comprehensively prepared the agreement with the Defendant Company on August 31, 2002 that KRW 50,000,000,000, and KRW 50,000,000,000,000 were 30,000,000,000,000,000,000,000,000,00) were 30,000,00.

D. A operated the instant stock account pursuant to the aforementioned comprehensive discretionary investment agreement, but during the management period, the assets deposited in the instant stock account continuously decreased during the said management period, and at the end of October 2005, the deposited assets of the said stock account decreased to KRW 202,526,871 (the sum of the assessed assets deposited in the relevant month shall be calculated by dividing the total of the assessed assets deposited in the relevant month by the number of days in the relevant month), and upon pursuing its responsibility to A on October 18, 2005, A drafted a payment note that A would pay KRW 50,000 and KRW 135,00,000 as the Plaintiff’s share investment amount by December 31, 2005 (hereinafter “instant payment note”).

E. At the time of the preparation of the instant letter of payment, each time of stock transaction with the Plaintiff, the Plaintiff demanded prior consent from the Plaintiff, and from that time, the share transaction was conducted with the Plaintiff’s prior consent until December 31, 2005, which was based on the said letter of payment. However, since the Plaintiff’s loss of the Plaintiff’s stock investment was not recovered by the said deadline, the share transaction was conducted arbitrarily without the Plaintiff’s consent.

F. The balance of the deposited assets of the instant stock account was KRW 195,711,112, around December 2005, but around December 31, 2006, around December 31, 2006, at the time A’s stock transaction was completed, reduced to KRW 132,151,007. The assertion and determination on February 2, 200

A. The parties' assertion

(1) Plaintiff

① A, an employee of the Defendant Company, was unable to engage in the securities transaction and reported a significant loss of KRW 200 million by actively promising the Plaintiff to guarantee principal and recover loss by using the Plaintiff’s poor condition, thereby incurring considerable investment loss. As such, the Defendant Company is obligated to compensate the Plaintiff as an employer for losses arising from such unfair solicitation as above. ② A, upon delegation of comprehensive discretionary sale from the Plaintiff, has to perform the duty of due care as a good manager with respect to the Plaintiff in managing the instant stock account upon the delegation of comprehensive discretionary sale. However, in light of the entrusted purport and entrusted money in order to disregard the Plaintiff’s interest and increase its business performance, the Defendant Company was engaged in a revolving sale, thereby making the Plaintiff obtain enormous fees, thereby incurring loss from the Plaintiff (an unlawful act arising from the excessive sale). After preparing the instant payment note, the Defendant Company was obligated to compensate the Plaintiff for losses arising from such an unlawful purchase or sale without the intention of the Plaintiff as a result of such agreement.

(2) Defendant Company

① Although the Plaintiff suffered a substantial financial loss through investment in stocks upon A’s recommendation, it cannot be concluded that the Plaintiff’s solicitation was an unfair solicitation, or an excessive trading or discretionary trading of stocks of A based on the Plaintiff’s delegation. ② Even if the Plaintiff acquired a claim for damages against the Defendant Company due to the stock transaction, the Plaintiff’s claim for damages arising prior to July 31, 2004, counting from August 30, 2007, which was instituted the instant lawsuit, should be deemed as having been terminated by the extinctive prescription due to the Plaintiff’s failure to exercise the right for damages for three years, even though the Plaintiff was aware of the occurrence of damages by the mail of each month following the instant stock transaction. ③ During the period of stock transaction through the instant stock account, the Plaintiff should deduct the Plaintiff from the amount of damages, and ④ the Plaintiff should have confirmed the details and balance of the Plaintiff’s fault within the scope of the damages caused by the Plaintiff’s negligence.

B. Occurrence of damages liability

(1) Whether an illegal act was committed on account of an unjust solicitation

In a case where an officer or employee of a securities company solicits an investment in violation of the mandatory provisions of a securities company to guarantee the profit of the company, but the investment loss incurred as a result of an investment, the existence of positive deception as to whether to guarantee the profit of the investment can be established, rather than demanding the existence of positive deception as to the transaction details, transaction methods, customer’s investment situation (property status, age, social experience, etc.), transaction risk, and the degree of explanation as to the above, etc., should be comprehensively taken into account, and the pertinent solicitation constitutes a case where a general investor, who lacks experience, interferes with the formation of correct awareness about the risks inevitably accompanying the transaction, or actively solicits a transaction involving excessive risk in light of the customer’s investment situation, and ultimately, it can be evaluated as an act of violation of the duty to protect the customer (see, e.g., Supreme Court Decision 93Da26205, Jan. 11, 1994)

With respect to the instant case, the public health department: (a) proposed additional investments to the Plaintiff on July 21, 2001; (b) prepared the instant agreement on guaranteeing investment principal and distributing profits; and (c) prepared a written statement of payment to the Plaintiff on October 18, 2005 that the Plaintiff would pay KRW 50 million and KRW 135,000,000 to the Plaintiff up to December 31, 2005; (d) on the other hand, the Plaintiff could not be deemed to have been aware of the risk of operating the Plaintiff’s share capital through a large number of accounts from around 198, prior to commencing the stock transaction through the instant share account; and (e) prepared a written agreement to the effect that the Plaintiff would have been aware of the risk of operating the Plaintiff’s share capital after being 50,000,000,000 won, which would have been 300,0000,000 won after the said investment account.

(2) Whether the tort occurred due to excessive trading or discretionary trading

In the event that an all-inclusive contract between a securities company and a customer for sale and purchase of stocks exists, the employee cannot be deemed to have breached his/her duty of due care as a good manager solely on the ground that the employee repeatedly traded stocks without profitability. However, in light of the fact that the securities company entered into an all-inclusive discretionary sale and purchase agreement with the customer, where the employee causes losses to customers by making frequent turnover in order to disregard the customer’s interests, disregarding the customer’s interests, and increase the company’s business performance, the act of excessive sale and purchase is established as a tort. Whether an employee of a securities company violates his/her duty of loyalty in the securities company should be determined by taking into account the following circumstances: (i) whether the employee committed an excessive sale and purchase of stocks in violation of his/her duty of loyalty in the customer’s old account; (ii) the motive and circumstance leading up to the purchase and sale of stocks; (iii) the average period of holding of the purchased stocks; (iv) whether the purchase and sale of stocks was repeated; and (iv) whether the amount of fees is excessive; and (iv) whether there are more than 97.

이 사건에 관하여 보건대, 위 각 증거에 변론 전체의 취지를 종합하면, A는 원고와 이 사건 합의서를 작성한 무렵인 2001. 7. 21.부터 자신이 피고 회사를 퇴사할 무렵인 2006. 12. 31.경까지 이 사건 주식계좌를 관리하여 왔는데, 그 중 위 주식계좌 개설 이후 원고가 A에 대한 포괄적 일임매매 권한부여를 철회한 이 사건 지불각서 작성전일까지(2001. 7. 21.부터 2005. 10. 17.까지 약 4년간)는 약 5,236회, 그 후 A가 이 사건 지불각서를 작성하면서 손실만회를 약속한 2005. 12. 31.까지는 87회, 그 후 A가 위 주식계좌를 통한 주식거래를 종료한 2006. 12. 31.까지는 400회 등 총 5,723회 의주식매매가 이루어졌고 위 전체 거래기간 중 월 평균매매회전율(이는 거래대금예탁자 산 X 100의 방식으로 계산한다)은 379.72에 이르는 사실, 그 거래의 상당 부분은 매수한 당일 또는 5일 이내의 단기간에 매도가 이루어졌으며, 매도 후에도 다른 종목의 주식을 매수하는 것이 아니라 며칠 이내에 같은 회사의 주식을 다시 매수하는 방법을 취한 경우가 많은 사실, 거래가격에 관하여도 매수한 가격보다 낮거나 동일한 가격으로 단기간에 매도하거나 매도한 가격보다 높거나 동일한 가격으로 매수하고, 매수한 가격보다 높은 가격이라고 하더라도 거래수수료와 거래세액을 공제하면 원고에게는 거의 이익이 없거나 오히려 손해가 발생할 정도로 가격 상승이 소폭인 수익성 없는 거래행위를 한 경우가 많은 사실, 그와 같은 주식거래 과정에서 원고가 입게 된 투자손실금액은 2001. 7. 21.부터 2005. 10. 17.까지의 기간 동안의 경우 295,324,607원(= 이 사건 주식계좌에 최초 예치된 투자금 5억 원 - 2005.10.17. 이 사건 주식계좌 예탁자산 월말 평가금액 204,675,393원)이고, 그 후 2005. 12. 31.까지의 기간 동안의 경우 8,964,281원(= 2005. 10. 17. 이 사건 주식계좌 예탁자산 월말 평가금액 204,675,393원 2005. 12. 31. 이 사건 주식계좌 예탁자산 월말 평가금액 195,711,112원), 그 후 주식거래가 종료된 2006. 12. 31.까지의 기간 동안의 경우 63,560,105원(= 2005. 12. 31. 이 사건 주식계좌 예탁자산 월말 평가금액 195,711,112원 - 2006.12.31. 이 사건 주식계좌 예탁자산 월말 평가금액 132,151,007원) 등 합계 367,848,993원인 사실, 전체 거래기간 동안 주식매매를 통하여 발생한 주식거래 수수료는 291,724,350원으로 전체 손실액에서 수수료가 차지하는 비율이 약 79.3%(= 291,724,350원 / 367,848,993원 x 100)에 이르는 사실, 한편 원고가 이 사건 주식계좌를 개설할 무렵인 2001. 7. 19.의 거래소 주가지수는 545.73 이었는데, 약 2달 후인 2001. 9. 21.에는 472.31로 떨어졌다가 다시 2002. 4. 22.에 920.89까지 올랐고 약 1년 후인 2003. 3. 17.에는 515.24까지 떨어졌으며 그 후 2004. 4. 23.에 936.06까지 상승하는 등 등락을 거듭하다가 이 사건 지불각서를 작성할 무렵인 2005. 10. 18.에는 1,186.22까지 상승했고, A가 이 사건 주식계좌를 통한 주식거래를 종료한 무렵인 2006. 12. 28.에는 1,434.46에 이르게 된 사실, 원고는 위 주식거래기간 중 이 사건 주식계좌에서 2001. 12. 12. 5,000만 원을 출금한 것을 비롯하여 2006. 5. 18. 264만 원을 출금하는 등 총 6회에 걸쳐 합계 146,340,000원을 인출한 사실(이 사건 주식계좌에서 2005. 2. 18. 출금된 8,769,000원은 원고가 2002. 5. 24. 피고 회사 초량 지점의 계좌에서 이 사건 주식계좌로 입고된 6종목의 주식 중 5종목이 매각됨에 따라 원고가 인출한 금액으로 A의 주식거래로 인한 손실과 무관하다)을 인정할 수 있는바, 위 인정사실에 비추어 보면 비록 증권 거래가 본래 여러 불확정 요소에 의한 위험성을 동반할 수밖에 없다고 하더라도 A의 위와 같은 주식 매매행위는 전문가로서의 합리적인 선택이라고는 볼 수 없다고 할 것이고, 더욱이 원고가 A에게 주식거래를 위임한 전체 기간 동안 주가가 큰 폭으로 상승하는 기간이었음을 고려하면 A는 고객에 대한 충실의무에 위반하여 원고의 이익을 무시하고 피고 회사의 영업 실적만을 증대시키기 위하여 원고로부터 포괄적 일임매매 위탁을 받은 기간(2001. 7. 21.부터 2005. 10. 17.까지)에는 과당매매행위를 함으로써, 원고가 A에 대한 포괄적 일임매매 권한부여를 철회한 이후 주식거래가 종료될 때까지의 기간(2006. 1.경부터 2006. 12. 31.까지)에는 원고의 승낙 없이 이 사건 주식계좌의 예탁자산을 임의로 매매함으로써 원고에게 손해를 입힌 것으로 봄이 상당하다.

Therefore, as an employer of A, who is his employee, the Defendant Company is obligated to compensate the Plaintiff for damages caused to the Plaintiff by committing an excessive sale or voluntary sale of the Plaintiff’s stock account.

C. Scope of liability for damages

(1) Method of calculating damages

Property damage caused by an excessive sale refers to the difference between the property disadvantage caused by an unlawful harmful act, that is, the property condition that would have existed without the excessive sale and the property condition after the excessive sale had been terminated (see, e.g., Supreme Court Decisions 91Da33070, Jun. 23, 1992; 2002Da12659, Jan. 26, 2006).

Inasmuch as an investment risk should be reflected in the case of an over-the-counter transaction that would have existed without an over-the-counter transaction, the valuation value of deposits and stocks at the time when the over-the-counter transaction begins, and an adequate assessment of losses and transaction expenses, which would have occurred when a normal discretionary transaction was conducted using the price index fluctuation rate, etc., and the amount obtained by deducting them. Ultimately, the difference between the amount and the balance (the balance after the over-the-counter transaction) at the time when the over-counter transaction was completed, shall be deemed as damages caused by the over-the-counter transaction in principle (see, e.g., Supreme Court Decision 2004Da4980, Apr. 12, 2007).

(2) According to the above facts, the total amount of losses incurred from the stock account of this case due to over-the-counter trading or discretionary trading is 295,324,607 won (i.e., the amount of losses incurred during the period from July 21, 2001 to October 17, 2005 when the Plaintiff opened the stock account of this case and granted the comprehensive discretionary trading authority to A (i.e., the amount of 295,324,607 won (i.e., the amount of investment deposited first in the stock account of this case - 50, 204, 675, 393 won) and the total amount of 204,675, 306, 206, 205, 306, 306, 206, 306, 160, 105 won (=65, 205, 175, 2016, 306, 175, 105).7, 15

(3) Limitation of liability

(A) The following circumstances revealed by the fact of recognition of losses and transaction costs in the event of a normal sale and purchase of shares, namely, A’s over-the-counter or discretionary sale and purchase of shares through the instant stock account for a considerable period of time up to five years and five months (round 21, 2001) as a whole. A trading mainly conducted on an exchange-registered issue. During the aforementioned stock trading period, it is difficult to determine the direction of change in the share price index for the entire share trading period due to a significant increase in the decline and increase in the price of the shares. Considering that the Plaintiff’s total amount of investment in the Plaintiff’s share was withdrawn on several occasions during the said share trading period, and that it was difficult for the Plaintiff to accurately compensate for losses or losses during the pertinent trading period, even if it did not reach the normal sale and purchase price of shares during the pertinent period of up to 30% since it appears that the total share price per share price per 146,340,000 won was reduced due to a significant increase in the price per share trading period.

(B) Negligence offsetting;

Furthermore, even though the Plaintiff had been delegated a monthly transaction with the Defendant Company C, who was an employee of the Defendant Company, but had been 200 million won or more, and had been engaged in the transaction of more than 200 million won and more than 500 million won trusted only the horses of the Defendant Company A, which were first in charge of the business related to the shares at the Defendant Company’s written branch, and the Plaintiff actively participated in the preparation of the instant agreement, such as preparing the instant agreement on invalidity not allowed under the Securities and Exchange Act and the agreement on compensating for losses, other than the agreement on compensating for losses, and making it possible for the Plaintiff to notify the Plaintiff, who is the nominal owner of the instant share account, by mail, of the monthly transaction content, balance, and remaining amount, and verify that there was a continuous loss from the instant share account, even though it did not take measures such as suspending the instant abnormal transaction for 4 years until the preparation of the instant payment memorandum, and it appears that the Plaintiff’s damage was increased more than the Plaintiff’s damage by neglecting the Plaintiff’s abnormal transaction.

Ultimately, in light of the loss incurred in the event of a normal daily trade as seen above, transaction expenses, and Plaintiff’s negligence, the amount of damages that Defendant Company is liable for to the Plaintiff as an employer of A is KRW 85,017,884 (i.e., total amount of losses 212,54,712 x 0.8 x 0.5 x 0.5).

D. Determination on the assertion of extinctive prescription

Article 76 (1) of the Civil Act, which provides the starting point for the claim for damages due to a tort, "date on which the victim becomes aware of the damage and the perpetrator" means the time when the victim has actually and specifically recognized the facts of the requirements for the tort, such as the occurrence of the damage, the existence of the illegal harmful act, and the occurrence of the harmful act and the occurrence of the damage. Whether the victim, etc. is deemed to have actually and concretely recognized the facts of the requirements for the tort should be reasonably acknowledged by taking into account various objective circumstances in individual cases and taking into account the circumstances practically possible claim for damages (see, e.g., Supreme Court Decision 2006Da3040, Apr. 24, 2008; 2006Da3040, Apr. 24, 2008). Since the plaintiff opened the stock account of this case, it is difficult to view that there was a reasonable causal relation between the plaintiff's duty to purchase and sell the shares through the mail delivery company's notice, the amount of transactions and remaining amount of the securities company's account, etc.

E. Sub-decision

Therefore, as an employer of A, the Defendant Company is obligated to pay the Plaintiff the above damages amounting to KRW 85,017,884 and the damages for delay calculated at the rate of 5% per annum under the Civil Act from September 6, 2007 to the date following the delivery date of the complaint of this case sought by the Plaintiff, and 20% per annum under the Act on Special Cases Concerning Expedition, etc. of Legal Proceedings from the next day to the date of full payment.

3. Conclusion

Thus, the claim of this case shall be accepted on the grounds of the above recognition scope, and the remaining claims shall be dismissed on the grounds of its merit.