The case holding that a joint tort liability is recognized for a person who provided a passbook used in the so-called “Singing”

In a case where Party A et al. opened in their own name and transferred a passbook to a person under his name in the so-called “Singing” was used, the case holding that Party A et al. was liable for damages as joint tortfeasor pursuant to Article 760 of the Civil Act, since Party A et al., even if Party A et al. did not actively participate in the criminal act of “Sing” even though it was presumed that Party A et al. could have been able to use the above passbook in the “Sing” that could mislead many unspecified persons at the time of the above transfer, and that Party A et al. was liable for damages as joint tortfeasor pursuant to Article 760 of the Civil Act (Provided, That the liability is limited to 70% by taking account of the victim’

Article 760 of the Civil Act

Plaintiff (Attorney Jeon-ju et al., Counsel for the plaintiff-appellant)

Defendant 1 and one other

February 28, 2011

1. The Plaintiff:

A. Defendant 1 shall pay 7,701,50 won and 5,000 won among them at each rate of 5% per annum from October 26, 2010 to March 28, 2011, and 20% per annum from July 9, 2010 to March 28, 201, respectively;

B. Defendant 2 shall pay 3,501,080 won and 3,600 won among them at each rate of 5% per annum from July 9, 2010 to March 28, 2011, and 20% per annum from the following day to the date of full payment.

2. The plaintiff's remaining claims against the defendants are dismissed.

3. Of the litigation costs, 30% is borne by the Plaintiff, and the remainder 70% is borne by the Defendants, respectively.

4. Paragraph 1 can be provisionally executed.

In the first place, Defendant 1 shall pay to the Plaintiff 1,00,000 won, Defendant 2 shall pay to the Plaintiff 5,000,000 won with 20% interest per annum from the day after the copy of the complaint is served to the day of complete payment.

Preliminaryly, Defendant 1 shall pay to the Plaintiff 11,00,000 won, Defendant 2 shall pay to the Plaintiff 5,000,000 won with 5% interest per annum from July 9, 2010 to the service date of a copy of the application for modification of claim and cause of claim, and 20% interest per annum from the next day to the day of full payment.

1. Basic facts

A. On July 9, 2010, the Plaintiff: (a) heard the voice that “I am arrested children; (b) I would have been detained in a gold underground warehouse; and (c) I would have been faced with the head from the flood engine via the telephone,” and then transferred KRW 6 million from the overseas exchange bank account (Account No. 1 omitted) in the name of Defendant 1 designated by the winners of the Plaintiff’s name from the bank account in the name of the Plaintiff via the phone bank (Account No. 2 omitted); and (d) KRW 5 million from the overseas exchange bank account (Account No. 2 omitted) in the same Defendant’s name; and (e) KRW 5 million from the North Daegu Agricultural Cooperative account in the name of Defendant 2 (Account No. 3 omitted); and (e) million from the bank account in the name of the Nonparty (Account No. 460 million) to each account in the name of the Nonparty (Account No. 3 omitted).

B. Around July 7, 2010, Defendant 1 and Defendant 2 were called to receive a loan from each person under the name of the deceased on July 8, 2010, and each of the above Section A, each of which was provided through Kwikset service along with the cash card. The Defendants were suspended from indictment for the violation of the Electronic Financial Transactions Act by the prosecutor of the Seoul Dong District Prosecutors’ Office on December 13, 2010.

C. 6 million won which the Plaintiff deposited in the Korea Exchange Bank account of Defendant 1 remains to be withdrawn from KRW 5,997,00 among them, and 3,000 won deposited in the said Defendant’s NFC account remains to be deposited. KRW 5 million deposited in the said Defendant’s NFC account is withdrawn from KRW 4,998,00 among them, and there remains KRW 2,000, and KRW 5 million deposited in the Defendant 2 account remains to be withdrawn, and KRW 4,996,400 out of them remains to be withdrawn and KRW 3,600.

[Reasons for Recognition] The result of each fact inquiry about Gap's non-satisfy, Gap's 1 to 5 (including virtual numbers), NFFF's non-satisfy branches, Han-chi Bank's counter-satisfy branches, and the director of the North Daegu Agricultural Cooperative Branch

2. Judgment on the ground of the Plaintiff’s claim

A. Determination on the claim for restitution of unjust enrichment

As seen earlier, the Plaintiff deposited KRW 11 million in total with Defendant 1’s account and KRW 5 million with Defendant 2’s account, respectively. However, whether the Defendants acquired all of the money deposited in each of the above accounts opened in their own name with their own interest is insufficient to recognize it only by the evidence submitted by the Plaintiff, and there is no other evidence to acknowledge it.

However, as seen earlier, Defendant 1’s total sum of KRW 5,00 and KRW 3,600 remain in the passbook with Defendant 2, and each of the above money can be deemed to have been practically accrued without any legal cause. As so, Defendant 1 is liable to pay damages for delay calculated at an annual rate of 20% from October 26, 201 to March 28, 201, respectively, and from the date of delivery of the copy of the instant complaint, as the Plaintiff seeks with respect to each of the above money, Defendant 2 is liable to pay damages for delay calculated at a rate of KRW 5,00 per annum from November 18, 201 to the date of the instant judgment, and from the following day to the date of full payment.

B. Determination on the claim for damages

In the establishment of a joint tort under Article 760 of the Civil Act where several persons jointly inflict damage on other persons, the joint tort is established, as well as conspiracy among actors, but it does not require joint perception: Provided, That if the joint tort is objectively related to the joint tort, it is sufficient if the joint tort is objectively involved, and as a result, the damage is caused by the joint tort. Aiding and abetting in a joint tort refers to all direct and indirect acts that facilitate the tort, and it is possible to assist by negligence as an interpretation of the Civil Act that considers the negligence as a matter of principle for the purpose of compensating for damage, unlike the Criminal Act. In this case, the content of negligence refers to a violation of this duty on the premise that there is a duty of care not to assist the tort (see Supreme Court Decision 2009Da1313, Apr. 23, 2009).

According to the above facts, the defendants could have sufficiently predicted that, at the time of transfer of the passbook opened in their name to a nameless person, the passbook could be used for the so-called “wishing” through deceiving many and unspecified persons, such as the plaintiff, and allowing them to deposit the passbook, and even if the defendants did not actively participate in the criminal act of “wishing”, at least the defendants transferred the passbook so that they could easily commit the above criminal act by transferring the passbook, and thus, the defendants are liable to compensate for the damage as joint tortfeasor pursuant to Article 760 of the Civil Act.

However, in the situation where the “Sing” as the Plaintiff also emerged as a big social issue, it is deemed that there was an error of making a rush deposit of money without proper verification procedures, and that the Plaintiff’s negligence contributed to the occurrence and expansion of the instant damages. Therefore, taking this into account, the Defendants’ responsibility for the instant damages is limited to 70%.

Therefore, Defendant 1 is obligated to pay the Plaintiff damages amounting to 7,696,50 won (11 million won - 5,000 won) x 70%, Defendant 2 is obligated to pay damages amounting to 3,497,480 won (5 million won - 3,600 won) x 70%) and damages amounting to 5% per annum from July 9, 2010, which is the date of the instant judgment, to March 28, 201, which is the date of the instant judgment, and to pay damages amounting to 20% per annum from the next day to the date of the full payment.

3. Conclusion

Thus, the plaintiff's primary and conjunctive claims against the defendants are accepted within the scope of each recognition, and the remaining claims are dismissed as they are without merit.

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