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Reasons
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(영문) 서울고등법원 2018.02.07 2017나9765
손해배상(기)
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1. The judgment of the first instance court, including the claims extended by this court, shall be modified as follows:

Defendant B.

Reasons

1. Basic facts

A. From February 18, 2013 to August 26, 2013, the Plaintiff leased KRW 301,000,000 to E (hereinafter “Nonindicted Company”).

B. From October 21, 2013, Defendant B operated a sub-committee company. around January 7, 2014, Defendant B embezzled KRW 30,000,000, out of KRW 34,650,000, out of the amount of goods remitted to the account of the non-party company, and embezzled it on the same day. From around that time to May 20, 2014, Defendant B embezzled KRW 140,000 or total amount of goods deposited to the account of the non-party company by the aforementioned method as above, or the national tax refund.

C. Defendant B was charged with the act of occupational embezzlement under the above B by the Busan District Court Branch Decision 2017Kadan1448 and was sentenced to one year imprisonment and two years of suspended execution on September 21, 2017. The above judgment was finalized on September 29, 2017.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 7, 8, 19 (including branch numbers; hereinafter the same shall apply) and the purport of the whole pleadings

2. The Plaintiff’s assertion has a claim for loans, etc. of KRW 371,945,00 against the non-party company. The non-party company has a claim for damages of KRW 260,613,080 against the Defendants due to the Defendants’ tort (= KRW 140,00,000,000 KRW 70,352,080).

On the other hand, the non-party company is currently insolvent.

Therefore, in order to preserve the above claim, the Defendants should pay the above damages liability to the Plaintiff who subrogated to the non-party company.

Defendant B embezzled KRW 140,00,000 of the company’s capital, and Defendant C and D embezzled the said money in collusion with Defendant B, or aiding and abetting Defendant B’s above crime.

In addition to the above money, Defendant C embezzled KRW 70,352,080 of the non-party company’s funds deposited in the account under Defendant C’s name jointly with Defendant B and D, and Defendant D embezzled KRW 81,424,810 of the non-party company’s funds deposited in the account under Defendant D’s name jointly with Defendant B and C.

3. Determination A.

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