[1] Whether Article 107(1) of the Civil Act applies mutatis mutandis to an act of acting as an agent in breach of trust (affirmative) and the criteria for determining whether the other party's bad faith or negligence was committed

[2] The case denying the establishment of a deposit contract with a depositor on the ground that the depositor was negligent in not knowing that the intent of the deposit contract for a bank employee was not the actual intent

[3] In a case where a victim's bad faith or gross negligence is recognized as a tort committed by an employee, whether an employer's liability is recognized (negative)

[4] The case affirming the judgment of the court below which recognized the user liability of a bank where only ordinary negligence of the bank's employee's breach of trust is recognized as a depositor

[1] In a case where the other party knew or could have known that an expression of intention, which is not a truth, was made by an agent and the intention of the agent was in breach of trust for the benefit of himself or a third party against his interest or will, the act of the agent cannot be established as his act of representation under the proviso of Article 107(1) of the Civil Code, and thus, the principal is not liable for the act of the agent, and whether the other party knew or could have known that the agent was not a truth should be determined reasonably based on objective circumstances, such as the process of forming the expression of intention, its contents, and the effects arising therefrom.

[2] Where a deposit contract entered into by a depositor via a third party is more than the ordinary regular deposit interest rate, but cannot be seen as using such method for attracting a deposit in the city, such as being unable to withdraw it for a certain period, the case holding that the depositor cannot claim the return of the deposit against the bank on the ground that the deposit contract was not established in the relationship with the relevant depositor on the ground that it was not established by the deposit contract itself on the ground that the depositor could not claim the return of the deposit to the bank on the ground that it was not established in the relationship with the relevant depositor

[3] Even in cases where an employee's illegal act appears to fall within the scope of employer's execution of business, where the victim himself/herself knew, or was unable to know, due to gross negligence, that the employee's illegal act does not fall within the scope of employer's execution of business, the employer's liability may not be imposed against the employer or the supervisor of business instead of the employer.

[4] The case affirming the judgment of the court below which recognized the user liability of the bank in a case where only the ordinary negligence of the bank's employee's breach of trust is recognized to depositors

[1] Articles 107(1) and 116 of the Civil Act / [2] Articles 107(1), 116, and 702 of the Civil Act / [3] Article 756 of the Civil Act / [4] Articles 702 and 756 of the Civil Act

[1] [2] Supreme Court Decision 86Da1004 delivered on July 7, 1987 (Gong1987, 1292), Supreme Court Decision 86Da371 delivered on November 10, 1987 (Gong1988, 78) / [2] Supreme Court Decision 74Da1452 delivered on March 25, 197 (Gong1975, 8383) / [3] Supreme Court Decision 83Da217 delivered on June 28, 1983 (Gong1983, 1139), Supreme Court Decision 92Da10531 delivered on July 28, 1992 (Gong192, 2640)

South Korean Supreme Court Decision 201Na11488 delivered on May 2, 201

Gwangju Bank (Attorney Yoon Il-young, Counsel for the defendant-appellant)

Gwangju High Court Decision 93Na2840 delivered on May 20, 1994

All appeals are dismissed. The costs of appeal are assessed against each party.

The grounds of appeal (the grounds of appeal by the Plaintiff are to the extent of supplement) are examined.

1. The plaintiff's ground of appeal No. 1

In a case where the other party knew or could have known that the other party's expression of intention is in breach of trust for his own interest or a third party's interest against his own interest or will, under the analogical interpretation of the proviso of Article 107 (1) of the Civil Act, the principal's act cannot be established as his agent's act. In this case, whether the other party knew or could have known that the other party's intention to indicate is not serious, shall be determined reasonably based on objective circumstances, such as the process of forming an expression of intention between the nominal agent and the other party's deposit and its contents, and the effects arising therefrom. The party's deposit account should not be determined reasonably by the objective circumstance (see, e.g., Supreme Court Decisions 86Meu104, Jul. 7, 1987; 86Meu371, Nov. 10, 1987; 2000 won cannot be determined by the court below that the deposit contract of this case was made under the name of the other party's ordinary deposit account, and it can not be made.

Therefore, the intention of Nonparty 1 in relation to the instant deposit contract was in breach of trust in violation of the intent or interest of the Defendant bank, and the Plaintiff entered into the instant deposit contract without knowledge that the intent of Nonparty 1’s deposit contract was not a genuine intention, and thus, in the relationship with the Plaintiff and the Defendant bank, the instant deposit contract itself was not established, and thus, the Plaintiff cannot file a claim for return of the deposit on the premise that the legitimate deposit contract was established.

The judgment of the court below to the same purport is just and there is no error in the misapprehension of legal principles as to the establishment of a deposit contract. There is no ground for appeal.

2. As to the Defendant’s first ground of appeal

Even in cases where an employee's tort appears to fall within the scope of the employer's execution of business, it is reasonable that the employee's act constitutes a tort against the plaintiff and the defendant bank is liable for damages to the plaintiff as the employer, and there is no error in the misapprehension of legal principles as to the employer's liability, the reason, non-party 1's act does not constitute the act of the defendant bank's execution of business, or in the misapprehension of legal principles as to the employer's liability, the non-party 1's act does not constitute the act of the defendant bank's management, or the non-party 1's non-party 1's negligence. However, it is evident that the court below found that the non-party 1's act was based on the premise that he did not know the plaintiff's ordinary negligence, and therefore, it is reasonable that the court below's decision that the non-party 1 withdrawn the money deposited by the plaintiff without the plaintiff's consent and used the money for private business without the plaintiff's private use of business.

3. As to the defendant's second ground for appeal

The court below rejected the defendant's assertion that the plaintiff was fully paid the damages incurred by the case from this case, which is a joint tortfeasor, and there is no error of law such as incomplete deliberation or misconception of facts due to the violation of the rules of evidence. There is no reason to interpret this.

4. The plaintiff's ground of appeal No. 2 and the defendant's ground of appeal No. 3

After the court below acknowledged the plaintiff's negligence and judged that the ratio of the plaintiff's negligence should be determined as 15% of the total amount of the plaintiff's negligence as stated in its holding, it is just and acceptable, and there is no error of law such as misunderstanding of facts as to the recognition of negligence or misunderstanding of legal principles as to the ratio of offset. There is no ground for both the arguments.

5. All appeals are dismissed, and the costs of appeal are assessed against each party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Jong-sik (Presiding Justice)