Gangnam-si (Attorney Kim Han-soo, Counsel for defendant-appellant)

Cho Ho Bank Co., Ltd. (Attorney Yu Ho-soo, Counsel for the plaintiff-appellant)

August 27, 2003

Chuncheon District Court Decision 2001Gahap195 delivered on December 20, 2002

1. Of the judgment of the court of first instance, the part of the judgment against the defendant ordering payment exceeding 83 million won to the plaintiff and 5% per annum from March 7, 2000 to May 31, 2003, and 20% per annum from the next day to the day of complete payment. The plaintiff's claim corresponding to the revoked part is dismissed.

2. The defendant's remaining appeal is dismissed.

3. The costs of appeal are assessed against the defendant.

1. Purport of claim

The defendant shall pay to the plaintiff 250 million won with 5% interest per annum from March 7, 2000 to the date of the judgment of the court of first instance ( December 20, 2002), and 25% interest per annum from the next day to the date of full payment.

2. Purport of appeal

The part of the judgment of the first instance against the defendant shall be revoked, and the plaintiff's claim corresponding to the revocation shall be dismissed.

1. Basic facts

The following facts are not disputed between the parties, or are recognized by Gap evidence 2-1 to 7, Gap evidence 3-3, 11, Gap evidence 4-1 and 2, and non-party 1's testimony of the court of first instance by integrating the whole purport of the pleadings.

A. A. On February 23, 200, the Lampha cement Co., Ltd. (hereinafter “here cement”) filed an application for the grant of mining damage prevention subsidies with the Plaintiff in 199. The Plaintiff was using a bank account transfer method to prevent a criminal act, such as embezzlement when granting subsidies. Accordingly, the Plaintiff also submitted to the Plaintiff a written application stating the account details to be deposited in order to receive the subsidies.

B. On February 24, 2000, the following day following the Plaintiff’s regional economy and local resource assistant, Nonparty 2, a person in charge of the above-mentioned subsidy-related work, opened an account in the name of cement cement (Account Number: omitted) with the intent to obtain a subsidy to be paid to Han Cement as a passbook opened by himself/herself, and opened an account in the name of the defendant bank located at the implied bank located at the same time in the same year.

C. After that, on February 28, 2000, Nonparty 2 prepared a letter of request on payment of KRW 250 million as a subsidy for mining damage prevention, along with a written request stating the details of the account for receiving subsidies already submitted by Han Cement and a statement of deposit request, etc., and obtained approval from the Plaintiff market.

D. When Nonparty 2 requests the payment of a subsidy in the course of granting written approval to the Plaintiff’s accountant, Nonparty 2 deducteds the written request and the statement of deposit request, instead of which Nonparty 2 voluntarily opened, entered the written request and the statement of deposit request in the name of Han Cement.

E. On March 6, 200, a person in charge of the Plaintiff’s accounting deposited 250 million won of the grant for cement, which was opened at his own discretion by Nonparty 2, and the next day, Nonparty 2 deposited 2,50 million won from the branch of the Defendant Bank Gangnam Branch to the said account and arbitrarily used it.

F. Meanwhile, according to the guidelines on Real Name Financial Transactions in the Korea Federation of Banks, Nonparty 1 et al. received only a bank transaction application under the name of Han Cement, a copy of the corporate seal impression and a copy of the corporate seal imprint certificate, and a copy of the corporate seal imprint certificate, which were prepared by Nonparty 2 in advance using the seal in the name of Han Cement, and submitted only a copy of the corporate seal imprint, a copy of the corporate seal imprint certificate and a copy of the corporate seal imprint certificate, and the corporate seal imprint were not submitted. Nonparty 2 did not verify the identity of the applicant for the establishment of the passbook, but also did not confirm the identity of the applicant for the establishment of the passbook under the name of the Cement, and it did not appear that Nonparty 2 made the request for the establishment of the passbook under the name of the Cement.

2. Judgment of party members

A. According to the above facts, the non-party 1, etc., an employee of the defendant bank, did not perform the duty of care, such as verifying actual names or confirming the identity of seals when opening an account in the name of Han Cement at the request of the non-party 2, and due to these negligence, the non-party 2, who opened an account in the name of Han Cement without permission by the non-party 2, thereby allowing the plaintiff to deposit the subsidy of KRW 250 million to be paid to Han Cement in the above account, thereby allowing the non-party 2 to obtain the above subsidy. Thus, the plaintiff suffered damages equivalent to the amount of the subsidy obtained through deception due to the non-party 2's intentional act and the joint illegal act of opening the account by the non-party 1, etc., and thus, the defendant bank, the employer of the above non-party 1, etc., is obligated to compensate the above non-party 2 and the plaintiff respectively.

B. The defendant asserts that there is no proximate causal relation between the act of opening an account due to the negligence by the employees of the defendant bank and the plaintiff's damage, and ② the State (the Ministry of Commerce, Industry and Energy) executed the defendant, not by the plaintiff's budget, but by the plaintiff's budget. Since Han Cement after the occurrence of this case has waived the plaintiff's claim for the above subsidy, no damage has occurred to the plaintiff. Thus, as seen earlier, the plaintiff forced the method of transferring the subsidy directly to the account recipient for the purpose of preventing an anticipated criminal act such as embezzlement when the plaintiff paid the subsidy, and so long as the non-party 2 was allowed to receive the subsidy by the negligence of the employees of the defendant bank without permission by the defendant bank, the act of opening an account due to the negligence of the employees of the defendant bank and the damage caused to the plaintiff. ② Since the financial resources related to the subsidy that the plaintiff received by the government are incorporated into the plaintiff's general budget, it is not reasonable to acknowledge the plaintiff's claim for the subsidy as alleged in the plaintiff's ground for appeal.

C. Meanwhile, as seen earlier, Nonparty 2 acquired the above subsidy intentionally while being in charge of the business of paying the subsidy to the Plaintiff’s employee, while the employee of Defendant Bank took part in the above damages due to the negligence in opening the deposit account. As such, in relation to Defendant Bank, the Plaintiff, as the employer of Nonparty 2, should bear a considerable portion of the damages of this case on the ground that he was responsible for the management and supervision. In light of the above circumstances, it is reasonable to limit the scope of the Defendant Bank’s liability to compensate the Plaintiff for the damages of this case to the extent of 1/3 of the above damages (it does not reach the extent of exemption of the Defendant’s liability as alleged by the Defendant). Ultimately, the amount of damages that the Defendant is liable to compensate is KRW 83 million (250 million, KRW 1/3,000, KRW 83333,300,000,0000, as the Defendant appealed.

3. Conclusion

Therefore, the defendant is obligated to pay to the plaintiff 83 million won and the amount equivalent to 5% per annum under the Civil Act from March 7, 2000 to May 31, 2003, which is the date of the tort in this case, and 20% per annum under the provisions of the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings (amended by May 10, 2003) from the next day to the date of complete payment. Thus, the plaintiff's claim in this case is justified within the above recognition scope, and the remaining claims are dismissed without merit. Since the judgment of the court of first instance which partially different conclusions are unfair within the above scope, the part against the defendant ordering payment in excess of the above amount recognized in the judgment of first instance is revoked, and the plaintiff's claim corresponding to that portion is dismissed, and the defendant's remaining appeal is without merit, and it is dismissed.

Judges Park Il-young (Presiding Judge)