2014Da82750 Claims

A Stock Company

1. B accounting corporation;

2. C.

Seoul High Court Decision 2014Na5304 Decided 17, 2014

April 28, 2017

All appeals are dismissed.

The costs of appeal are assessed against each appellant.

1. As to the appeal regarding the claim for damages caused by tort, the Plaintiff filed an appeal against the selective claimant’s part of the judgment below regarding the claim. However, without stating the grounds for appeal, the appellate brief does not indicate the grounds for appeal.

2. As to the ground of appeal on the claim for reimbursement

A. As to the Plaintiff’s grounds of appeal and the Defendants’ grounds of appeal Nos. 1 and 2, (1) in relation to the joint tortfeasor’s relationship with the creditor, the joint tortfeasor support the joint tortfeasor’s liability, but in relation to the joint tortfeasor’s internal relationship with the joint tortfeasor’s liability, the portion to be borne is determined according to the degree of the fault of the joint tortfeasor. In the event one of the joint tortfeasor has paid more than one joint tortfeasor’s liability to obtain joint exemption, he/she may exercise the right to reimbursement against the other joint tortfeasor according to the ratio of the share of liability (see, e.g., Supreme Court Decision 98Da52469, Feb. 26, 1999). In determining the ratio of the portion of liability, the ratio of the joint tortfeasor’s liability should be determined by taking into account the external elements directly related to the accident or damage, including the degree of negligence corresponding to the degree of each joint tortfeasor’s duty of care as to the occurrence or expansion of the tort, and if there is a special internal relationship between the joint tortfeasor, it should be considered within the limit of 20130.

In addition, the court determined whether the assertion of facts is true in accordance with logical and empirical rules on the basis of the ideology of social justice and equity with free evaluation of evidence taking into account the overall purport of pleadings and the result of examination of evidence (Article 202 of the Civil Procedure Act). The court below decided to the following purport, on the grounds as stated in its reasoning, as follows: (a) the court below prepared the financial statements for each quarter from 2007 to 3 years 2009 each of the Plaintiff’s (former representative director) and the executive director in charge of accounting-related affairs, and prepared each of the above financial statements for each of the loans (hereinafter “each of the loans claims of this case”) by stating as possible each of the loans claims of this case, and preparing and publicly announcing each of the above financial statements in the manner that the contingent obligations of the court below stated as stated in the judgment below in the manner that the aforesaid financial statements are not entirely stated in the Note to the financial statements.

(B) In the course of conducting an accounting audit for the Plaintiff, Defendant C, who knew or could have easily known the contents of the above window dressing accounting as above in each of the above financial statements, clearly neglected the auditor’s duty of care and stated “reasonable opinion” in the audit report for each of the above financial statements. (c) Since the victims who acquired the Plaintiff’s shares were believed to be true after the disclosure of each of the financial statements and audit report, and incurred damages as a result of the decline in the price thereafter, the Plaintiff and Defendant C, as joint tortfeasor, are liable to compensate for the damages suffered by each of the above victims as the Defendant C’s employer. In light of the circumstances indicated in the judgment, it is reasonable to view the ratio of internal share burden of the Plaintiff and the Defendants to the judgment of the lower court. (3) The allegation in the grounds of appeal disputing the fact-finding based on which the lower court’s judgment was based is merely erroneous in the selection of evidence and the determination of value of evidence belonging to the lower court’s free evaluation. Moreover, even if examining the reasoning of the lower judgment in light of the aforementioned legal principles and the evidence duly admitted.

B. As to the Defendants’ ground of appeal No. 1, on the grounds as indicated in its reasoning, the lower court determined that (1) even if the former representative director, etc. of the Plaintiff intentionally divided each financial statement from 2007 to 2009 to 3rd quarter, Defendant C, an employee of Defendant B accounting corporation, also prepared an audit report stating “reasonable opinion” in the course of conducting an audit with the Plaintiff, thereby taking the joint tort liability with the Plaintiff in relation to the above victims, and, among them, criminal punishment was imposed on the grounds that there was intention regarding the false statement in the audit report on the financial statements in 2008, on the grounds that the portion of the Plaintiff’s liability for one joint tortfeasor is much more than the Defendants, it is difficult to view that the exercise of the Plaintiff’s right to indemnity against the Defendants is against the good faith principle or constitutes abuse of rights. (2) Moreover, even if the Plaintiff did not exercise the right to indemnity against the Defendants, who are external auditors, even if exercising the right to indemnity against the Plaintiff’s officers, such circumstance alone does not constitute abuse of rights.

Examining the reasoning of the lower judgment in light of the aforementioned legal principles and the records, including the evidence duly admitted, the lower court did not err by misapprehending the legal doctrine on the violation of the good faith principle and the abuse of rights.

C. As to the Defendants’ ground of appeal No. 3, an interpretation of a juristic act is clearly confirming the objective meaning that the parties gave to the act of indicating it. In a case where an interpretation of a juristic act indicated in a disposition document is at issue, it shall be reasonably interpreted in accordance with logical and empirical rules so that it conforms to the ideology of social justice and equity, by comprehensively taking into account the form and content of the language, the motive and background leading up to the juristic act, the purpose and genuine intent to be achieved by the said juristic act, the transaction and customs, etc. (see, e.g., Supreme Court Decisions 2000Da27923, Oct. 6, 2000; 201Da53645, Oct. 27, 2011).

(2) On the grounds indicated in its reasoning, the lower court determined as follows. (A) Article 13(3) of the External Audit Contract prepared between the Plaintiff and the Defendant Accounting Corporation is a provision on the liability of Defendant B Accounting Corporation in the event the Plaintiff was forced to perform its duties by a third party. According to such provision, Defendant B Accounting Corporation cannot be exempt from liability for reimbursement against the Plaintiff when it comes to legal judgment that it was caused by breach of contract or intentional violation of contract by Defendant B Accounting Corporation. However, Defendant C did not know that each of the instant financial statements was windowped, or could have easily known, and entered false opinions on each of the audit reports by breach of the duty of care by an external auditor, and thus, Defendant C’s intentional act or negligence, which is an agent in the performance of Defendant B Accounting Corporation, is deemed to be an intentional act or negligence by Defendant B Accounting Corporation, and thus, Defendant B Accounting Corporation’s liability for reimbursement against the Plaintiff’s breach of contract’s liability for reimbursement of damages cannot be seen as an unlawful act or intentional violation. Accordingly, the Plaintiff’s ground of appeal No. 132 cannot be justified.

3. Conclusion

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

Justices Kim So-young

Justices Kim Yong-deok

Justices Kim Jae-han

Justices Lee Dong-won