(영문) 대법원 2015.1.15.선고 2012다84707 판결

1. A. Article 760(3) of the Civil Act imposes liability on a aiding and abetting a tort by deeming the aiding and abetting person as a joint tortfeasor. Aid and abetting refers to all direct or indirect acts facilitating a tort, and aid and abetting by negligence can be granted in the area of civil law where the negligence is the same as that of an intentional act in principle for the purpose of compensating for damages. In such a case, the content of negligence refers to aiding and abetting a tort under the premise that the aiding and abetting person has a duty of care not to assist the tort. However, aiding and abetting another person’s tort by negligence, in order to impose liability for joint tort, a proximate causal relationship exists between aiding and abetting act and the victim’s damage caused by the tort, and the determination of whether there

In a case where a tort was committed by negligence, due to the possibility of predictability of the circumstances that facilitate the relevant tort, as well as the impact of the negligent act on the occurrence of damage, the degree of contribution to the formation of the victim’s trust, and whether the victim himself/herself could easily prevent the damage, prudence should be taken into account so as not to excessively expand responsibilities (see, e.g., Supreme Court Decision 2013Da91597, Mar. 27, 2014).

Meanwhile, Article 6(3)1 of the Electronic Financial Transactions Act prohibits transfer of a means of access in an electronic financial transaction, such as a cash card or password, in principle, and punishes the relevant violation. This is to ensure stability and trust in electronic financial transactions by preventing transparent transactions by using an electronic financial transaction under the name of depositism and another person. However, since the purpose of using the means of access or the content of an individual transaction via such transfer is diverse, it is difficult to readily conclude that the victim formed wrong trust by the transfer of the means of access and entered into a cause contract for the relevant financial transaction. Therefore, in order to impose liability for damages arising from negligent aiding and abetting on the transferor of the means of access on the ground that the said electronic financial transaction constitutes an individual tort, beyond imposing legal effect on the holder of the means of access, on the ground that the transaction constitutes an individual tort, based on the specific circumstances at the time of transfer, and that the nominal owner could have easily predicted the transfer of the means of access by using the means of access and whether there is proximate causal link between the transfer of the means of access and the content of the means of access to the transfer.

B. According to the reasoning of the judgment below, the court below determined that it is difficult to conclude that there was a proximate causal relationship between the Defendant’s breach of the duty of care and the Plaintiff’s damage, on the following grounds: (a) in full view of the fact that: (i) the Defendant was using the passbook and cash card in the name of the Defendant to obtain a loan; (b) the Defendant was issued the passbook and cash card in the name of the Defendant; (c) the Defendant was issued the passbook and cash card; and (d) there was no evidence to prove that the Defendant acquired any monetary consideration due to the above delivery; and (b) it is difficult to conclude that the Defendant was transferring the passbook and cash card in the name of the Defendant at the time of delivering the passbook and cash card in the name of the Defendant; and even if the Defendant was found to have violated the duty of care, the account in the name of the Defendant was already used in disposing of the property after the Plaintiff was deceptiond to the person in the name of the

2. In light of the above legal principles and records, the above determination by the court below is just and acceptable, and there is no error in the misapprehension of legal principles as to joint tort liability due to negligent aiding and abetting.

3. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.