Plaintiff (Attorney Kim Jong-young, Counsel for the plaintiff-appellant)

New Bank Co., Ltd. (Law Firm Rated Village, Attorneys Promotional Bae et al., Counsel for the plaintiff-appellant

April 14, 2011

Changwon District Court Decision 2009Da10355 Decided September 9, 2010

1. The part against the plaintiff corresponding to the money ordered to be paid under the judgment of the court of first instance shall be revoked.

2. The Defendant shall pay to the Plaintiff 200,000,000 won with 5% interest per annum from October 22, 2009 to April 28, 201, and 20% interest per annum from the next day to the day of full payment.

3. The plaintiff's remaining appeal is dismissed.

4. The total costs of the lawsuit shall be ten minutes, which shall be borne by the plaintiff, and the remainder shall be borne by the defendant.

5. Paragraph 2 can be provisionally executed.

The judgment of the first instance shall be revoked. The defendant shall pay to the plaintiff 5 million won with 20% interest per annum from the day after the delivery date of the copy of the complaint of this case to the day of complete payment.

1. Facts of recognition;

The following facts are either a dispute between the parties, or there is no dispute between Gap's evidence 1 (cash storage certificate, defendant bank M&C center manager of the defendant bank's M&C center manager of the non-party 3 employee reduction, and there is no evidence to acknowledge the authenticity of the whole document. The defendant does not assert that the above employee reduction was stolen, but there is no evidence to acknowledge it), evidence 2 through 5, 6 (a dispute over the part of the non-party 3 employee reduction, but the authenticity of the whole document is presumed to have been established as a whole because it is recognized as identical to the employee reduction of the above non-party 2's evidence, although there is a dispute over the part of the above non-party 3 employee reduction of the document, it is presumed that the authenticity of the whole document is established as a whole because the identity with the employee reduction of the above non-party 2's evidence is recognized as identical to the employee reduction of the above non-party 3 employee reduction), evidence 11 and part of the evidence

A. Nonparty 1 conspired with Nonparty 2, who was the land store of the M&C Center, the project financing center, and agreed to obtain money from the Defendant Bank as if the Defendant Bank received money from an individual and paid a high interest rate after receiving a higher rate of interest, and then, the Plaintiff introduced from Nonparty 2 as the Plaintiff visited the above center from September 1, 2009 to around 11:39, and upon receiving KRW 500 million from the Plaintiff at the above center’s customer counseling office, he received KRW 500 million of the cashier’s checks issued by the Bank from the Plaintiff from the Plaintiff at the above center’s customer counseling office, and then issued a cash custody certificate (hereinafter “the cash custody certificate of this case”) with the following contents written in advance: (a) write the rubber stamp affixed to the “the manager Nonparty 3” and affixed the seal affixed to the “Nonindicted 1” name, and then affixed it to the Plaintiff.

Won 500,000,000

the above amounts shall be preserved at the appropriate point of receipt on September 1, 2009 at the appropriate office of the State Party.

Storage Period: 15 days from the date of safekeeping

Documents: A copy of a certificate of personal seal impression;

Storage Address: Masan-dong 7-1, Masan-dong 7-1

(b)trade name: Newly Inserted by the New Bank;

Business : Msan Financial Center Site Location Telephone: (055) 244-(hereinafter referred to as "Sesan Financial Center Site Location Telephone");

Name: Nonparty 1

B. Nonparty 1 did not deposit the above cashier’s checks issued from the Plaintiff to the Defendant bank, exchanged the checks in cash and cash through the closing point of our bank, and paid 70,000,000 won in cash individually and the remainder to Nonparty 2.

C. On September 3, 2009, Nonparty 1 confirmed on September 3, 2009, that “50 million won should be repaid to the Plaintiff by September 15, 2009. Nonparty 1 issued a written confirmation to Nonparty 3’s employees and his own seal affixed thereon (hereinafter “instant confirmation”). After Nonparty 1 stated Nonparty 3 and Nonparty 1’s agent Nonparty 3’s manager at the Plaintiff’s request.

D. On September 18, 2009, Nonparty 1 issued to the Plaintiff a certificate of payment guarantee accompanied by revenue stamps (hereinafter “instant certificate of payment guarantee”) on September 18, 2009, when Nonparty 1 was unable to repay the said money to the Plaintiff by the due date specified in the instant certificate: (a) at a restaurant with the third floor hotel of the hotel: (b) the Plaintiff: KRW 600 million; (c) the amount guaranteed: the Plaintiff; (d) the applicant and the obligor: the Msan Finance Center of the Defendant Bank; (d) the date of guarantee: the type and content of the guaranteed obligation; (e) the type of the guaranteed obligation; and (e) the type and content of the guaranteed obligation: (c) the revenue stamp was stated in

2. The parties' assertion

A. The Plaintiff asserts to the effect that: (a) Nonparty 1, the head of the site store of the Defendant Bank M&C center, on behalf of Nonparty 3, the manager of the said center, or the commercial employer, who has the partial comprehensive power of attorney under Article 15 of the Commercial Act, received the above KRW 500 million from the Plaintiff; (b) as to the said money, the contract for consumption or the loan for consumption was concluded between the Defendant and the Defendant; and (c) even if Nonparty 1’s above act exceeded his occupational authority, the Defendant is obliged to pay the above KRW 50 million and its delay damages to the Plaintiff in accordance with the doctrine of express representation under Article 126 of the Civil

B. As to this, the Defendant asserts to the effect that: (a) the above transaction with the Plaintiff and Nonparty 1 merely borrowed KRW 500 million from the Plaintiff individually; (b) the Plaintiff and the Defendant cannot be deemed to have entered into a consumption-based contract or a loan for consumption; and (c) the Plaintiff merely delivered the above money to Nonparty 1 with the intent of a loan for consumption; (b) the Plaintiff did not receive the above money on behalf of the Defendant; (c) the Plaintiff’s expression-based representation assertion is without merit; and (d) it cannot be deemed that the bank received the money from the individual customer and did not have any justifiable reason to believe that Nonparty 1 was authorized to act for the Defendant at the time of delivering the said money to Nonparty 1; and (c) the Plaintiff did not have any relationship with the said act, even if there was any relationship with the snow-based affairs, the Plaintiff did not have known or had no knowledge of the business relationship with Nonparty 1’s act at the time of the delivery of the said money, and thus, the Defendant did not have any gross negligence with the Plaintiff.

3. Determination

(a) Whether the contract for consumption and the loan for consumption are concluded;

The reasoning for this Court's explanation is as follows: (a) and (b) of the first instance court's decision No. 3. A. and (b) of the same Act; and (b) therefore, they are cited by the main text of Article 420

B. Whether a expressive representation under Article 126 of the Civil Act is established

In light of the fact that Nonparty 1 received KRW 500 million from the Plaintiff as the site location of the Defendant Bank Msan Finance Center, and the Defendant’s trade employee, who had the partial comprehensive power of representation under Article 15 of the Commercial Act, was deemed to have the basic power of representation under Article 126 of the Civil Act at the time of receipt of the said KRW 500 million, and as seen earlier, the Defendant Bank Msan Finance Center manager in the instant cash storage certificate, the name of Nonparty 3 and the manager’s seal impression is affixed, and the certificate of personal seal is attached thereto; in the name of the custodian, Nonparty 1 stated the name of Nonparty 1 in the name of the owner of the Plaintiff Bank Msan Finance Center site, and affixed the seal affixed thereto, it shall be deemed that Nonparty 1 received KRW 500 million from the Plaintiff and prepared the cash storage certificate of this case on behalf of the Defendant.

However, according to the evidence No. 4, the act of an individual bank, such as the defendant, to receive money individually from the individual in a short period of time and to prepare a cash custody certificate is extremely exceptional, and generally difficult type of transaction. ② According to the statement in the cash custody certificate of this case, the period of storage of the money delivered by the plaintiff to the non-party 1 is 15 days short, and there is no specific statement about the nature of the above money. ③ The plaintiff himself/herself is in receipt of the cash custody certificate of this case and the non-party 1 was in receipt of the confirmation document of this case. ④ According to the evidence No. 4, the payment guarantee certificate of the defendant bank was issued to the non-party 1, and the payment guarantee certificate of the non-party 1 was issued to the non-party 5, and thus, it can be acknowledged that the plaintiff's ordinary payment guarantee certificate of the defendant 1 was not issued to the non-party 1, and thus, the defendant's payment guarantee certificate of this case was not issued to the non-party 1.

Therefore, the plaintiff's assertion of the above expression agent is without merit.

C. Whether employer liability is established

1) Occurrence of damages liability

A) Comprehensively taking account of the overall purport of the arguments in the facts found earlier, Nonparty 1 and Nonparty 2 in collusion with Nonparty 2 to commit the crime of deceiving KRW 500 million from the Plaintiff by using the position of the site manager of the defendant Bank M&C center. Therefore, Nonparty 1 should have committed a tort of deceiving the Plaintiff by deceiving the Plaintiff.

B) As to whether the above illegal act of Nonparty 1 is related to the execution of business, the phrase "related to the execution of business", which is an element for the employer's liability under Article 756 of the Civil Act, is objectively deemed to be an act of performing business without considering the actor's subjective circumstances. Whether it is objectively related to the performance of business shall be determined by considering the degree of the employee's original duties and illegal act and the degree of the employee's failure to take preventive measures against losses (see Supreme Court Decision 2007Da75921, May 14, 2009, etc.). The defendant's act of receiving money and preparing a cash custody certificate against it is extremely exceptional as a bank, but it is objectively deemed that the act of receiving money from the customer's manager and paying money from the customer's manager to the non-party 1 as the above act of giving money to the plaintiff's employee or the defendant's employee's employee's employee's manager at the time of the above act of delivering the money to the plaintiff's manager.

C) As to this, the Defendant asserts that, at the time when Nonparty 1 received the cash custody certificate of this case from Nonparty 1, the Defendant did not recognize the employer’s liability, since he knew or was unaware of the fact that the act does not constitute the Defendant’s act of performing

However, the victim's gross negligence exempted from the employer's liability refers to the situation where it is reasonable to view that the employee's act was done within the business hours of the defendant's Bank of Korea, even though he could have known that it was not lawfully performed within his official authority, and there was no significant violation of the duty of care required by the general public by believing it as an act within his official authority, and there is no need to protect the victim from an equitable perspective (see Supreme Court Decision 2005Da55312, Nov. 16, 2007, etc.). As seen above, although the plaintiff violated the ordinary duty of care required by the general public at the time when preparing the cash custody certificate of this case from the non-party 1, it is recognized that the preparation of the cash custody certificate of this case was done within the customer counseling room within the business hours of the defendant Bank of Korea, and it is difficult to recognize that the plaintiff's act was done with the above duty of care or seal affixed to the non-party 1 when preparing the cash custody certificate of this case.

2) Limitation on liability for damages

As seen earlier, as the Plaintiff paid KRW 50 million to Nonparty 1 and was negligent in neglecting the ordinary duty of care at the time when the cash custody certificate of this case was issued, the Plaintiff’s negligence should be considered in calculating the Defendant’s damages, but the Defendant’s negligence ratio is limited to 40% by taking account of the contents of the above negligence, etc.

On the other hand, the defendant asserted that the non-party 1 repaid to the plaintiff KRW 150 million after the preparation of the cash custody certificate of this case. However, in light of the fact that the non-party 1, as the site manager of the defendant bank's M&C center, by deceiving the plaintiff using his position as the site manager of the defendant bank's M&C center, thereby deceiving the plaintiff by deceiving the plaintiff, the non-party 1 is a party to the illegal act by deceiving the KRW 500 million of this case from the plaintiff, it is difficult to believe that the non-party 1's testimony and the non-party 1's testimony as the witness of the party in question are in accord with the above argument, and it is insufficient to recognize

D. Sub-determination

Therefore, the defendant is obligated to pay to the plaintiff 20 million won (=50 million won x 40% of negligence ratio) and to pay damages for delay at each rate of 20% per annum under the Civil Act from October 22, 2009 to April 28, 2011, which is the date on which the defendant's delivery date of a copy of the complaint of this case sought by the plaintiff from October 22, 2009, to the day on which the defendant becomes liable for dispute as to the scope of the obligation.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified within the above scope of recognition, and the remaining claims are dismissed without merit. Since the part against the plaintiff in the judgment of the court of first instance which partially different conclusions is unfair, the part against the above recognized money is revoked and the defendant is ordered to pay the above amount, and the remaining appeal of the plaintiff is dismissed as it is without merit. It is so decided as per Disposition.

Judges Han Yang-dae (Presiding Judge) (Presiding Judge)

1) The Plaintiff asserts that “I have received a new confirmation that I will return to September 15, 2009 that I would return a site site store again on September 3, 2009, as I have recently returned, to the 14th page (the cause of the claim) of the complaint.”