[1] The calculation of damages suffered by employees of a securities company due to the tort of arbitrarily selling and buying customer’s shares

[2] In a case where an employee of a securities company agreed to compensate for losses caused by the employee of the securities company's arbitrary purchase and sale of stocks without the customer's prior consent by the method of collecting the relevant stocks by a certain date in the account of the customer, the case holding that since the voluntary purchase and sale conducted by the employee of the securities company prior to the above date pursuant to the above agreement was ratified by the customer, the object of the compensation shall be limited

[1] In general, property damage caused by an illegal act refers to the difference between the property disadvantage caused by the illegal act and the property condition that would have existed if the illegal act had been committed. Thus, in a case where an employee of a securities company arbitrarily traded shares, the difference between the balance of shares, deposits, etc., which were held before the voluntary commencement of the transaction of shares, and the balance between shares, deposits, etc., which had been held at the time of the suspension of the voluntary sale after the employee of the securities company knew the above fact of the voluntary sale, should be deemed as losses.

[2] In a case where an employee of a securities company agreed to compensate for losses caused by a customer's arbitrary purchase and sale of stocks without the prior consent of the customer by collecting the relevant stocks by a certain date in the account of the customer, the case holding that since a voluntary sale conducted by an employee of the securities company prior to the above date pursuant to the above agreement shall be deemed as ratified by the customer, the securities company shall be limited to damage caused by the voluntary sale conducted after

[1] Articles 393, 750, 756, and 763 of the Civil Act / [2] Articles 393, 756, and 763 of the Civil Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jae-soo et al., Counsel for plaintiff-appellant)

Myun (Law Firm Han field, Attorneys Kim Dong-dong et al., Counsel for plaintiff-appellant)

Hansung Securities Co., Ltd. (Attorney Kim Young-young, Counsel for the defendant-appellant)

Daejeon District Court Decision 200Gahap2057 delivered on December 14, 2000

Supreme Court Decision 2002Da11045 Delivered on April 10, 2002

1. The plaintiff's appeal of this case is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

18,979,700 won and its interest thereon from June 30, 1999 to the delivery date of a copy of the complaint of this case, 5% per annum, and 25% per annum from the next day to the day of full payment.

1. Basic facts

A. A. Around September 8, 1998, the Plaintiff opened an account for stock trade (Account Number 012-11-10283, hereinafter referred to as the “Plaintiff’s account”) at the innate branch of the Defendant Company. By April 15, 1999, the Plaintiff deposited the said account four shares of Samsung C&T Co., Ltd. (hereinafter referred to as “T&T shares”), the 1,500 shares of Samsung Air, the 50 shares of Samsung C&T, the 560 shares of the Enterprise Bank, the 23,713,836 shares in cash. The Samsung C&T shares were purchased 1,90 shares with the said deposit on April 16, 199, and 2,272 shares by suffering 368 shares in kind.

(b)The head of the branch office at the above point Kim Jong-chul began to sell and purchase Samsung C&T shares deposited in the Plaintiff’s account from April 16, 1999 without the Plaintiff’s prior consent, and from April 20, 199, at will from April 20, 199.

C. On June 30, 1999, the plaintiff confirmed that the Samsung C&T stocks deposited by the plaintiff and Samsung C&T stocks are arbitrarily traded in the Kim F&C, and confirmed that the balance of the above stocks falls short of the number of stocks at the time of deposit, the plaintiff argued to Kim F&C. On June 15, 1999, the plaintiff and Kim F&C agreed that the losses suffered by the plaintiff due to the voluntary sale of Samsung C&T stocks shall be paid KRW 19.5 million to the plaintiff and paid the above amount immediately. ② On June 30, 1999, the plaintiff agreed that the damage suffered by the plaintiff due to the voluntary sale of Samsung C&T stocks shall be compensated by the plaintiff's account until August 31, 199 (hereinafter referred to as the "agreement of this case").

D. By August 31, 199, the agreed date, the Gimmun entered only 1,472 shares in Samsung C&T into the above account. After that, the sale was continued to be conducted in order to keep the agreed balance, and the Plaintiff’s transaction was suspended on November 20, 199, only in order to suspend the transaction through the Plaintiff’s account.

(e)After the suspension of the transaction as above, Kim Jong-mun, an additional storage of Samsung C&T shares, made the balance of the shares 1,972 shares on November 26, 1999, and deposited 6.5 million won in cash on November 25, 1999;

F. At the time of April 16, 1999, the Gimmung Co., Ltd., immediately before the voluntary sale of Samsung C&T shares, the Plaintiff’s account was KRW 2,272 shares and KRW 2,227,746. On November 26, 1999, immediately after the voluntary sale of Samsung C&T shares was completed, there were KRW 1,972 shares and deposit KRW 6,929,579 (the Plaintiff’s account included an amount of KRW 6.5 million deposited in Kim Literature as described in the foregoing paragraph (e)). The price of Samsung C&T shares on the day is KRW 22,300.

[Evidence] A(2-15) through 3-24, 5-5 through 12, B-5 through 10, 2-12 through 14, 2-17, 3-5 through 7, 3-4, 3-5 through 4, and the whole purport of oral argument

2. Determination:

According to the above facts, the defendant company is liable to compensate the plaintiff for damages caused by the illegal act of arbitrary sale of the plaintiff's shares as the user of Kim Jong-gu. Furthermore, the amount is examined.

A. The plaintiff's assertion

The plaintiff suffered losses equivalent to 64,752,00 won (2,272 share x 28,500 won) calculated as 28,500 won, the share price of Samsung C&T on June 30, 1999, because the plaintiff was unable to sell all of 2,272 shares of Samsung C&T without prior consent from the time of sale. The plaintiff suffered losses equivalent to 300 won (2,272 share price x 28,500 won) from April 12, 199 to November 26, 199. Accordingly, the defendant company was liable for damages equivalent to the above money by arbitrarily selling the shares of the plaintiff to the above account 300 times from April 12, 199 to by withdrawing 44,227,700 won with commission. Accordingly, the defendant company is the employer of Kim F&C, who was an employer of the above money and mental suffering from the above monetary and mental suffering.

(b) Markets:

(1) Generally, property damage caused by an illegal act refers to the difference between the property disadvantage caused by the illegal act and the property condition difference caused by the illegal act, i.e., the property condition that would have existed if the illegal act had been committed, and the property condition difference after the illegal act had been committed. In a case where an employee of a securities company arbitrarily traded shares, i.e., the balance of shares and deposits, etc. which had been held before the commencement of the transaction of shares, and the situation after the employee of the securities company sold the shares voluntarily, i.e., the difference between the balance of shares and deposits, etc. which had been held at the time of the suspension of the voluntary transaction by raising the issue with the knowledge of the above voluntary transaction (Supreme Court Decision 98Da39633 delivered on November

(2)Therefore, I first examine the balance of shares and deposits in a state in which no voluntary sale was made, as the basis for calculating the damages suffered by the Plaintiff.

On June 30, 199, through the instant agreement, the Plaintiff and Kim Jong-chul agreed to settle all losses sustained by the Plaintiff due to voluntary sale until August 31, 199 by giving up all 2,272 shares of Samsung C&T, which were originally deposited in the Plaintiff’s account until August 31, 199. (Therefore, although the instant agreement does not explicitly provide for deposit, one of the following facts acknowledged by the aforementioned evidence, i.e., by selecting the Plaintiff to receive 2,2720,00 shares of Samsung C&T, which was agreed upon by the Plaintiff at the time of the instant agreement, 30,000,000 won, 11,932,860 won (the sum of KRW 5,609,609, 709, 7460, 7967, 79, 797, 1967, 197).

Therefore, pursuant to the above agreement, the voluntary sale of Samsung C&T was ratified by the plaintiff before August 31, 199 (i.e., the plaintiff worked for the Kim Jong-chul to sell and sell Samsung C&T shares by the above date). Therefore, this shall be excluded from the compensation. Therefore, the subject of compensation by Kim Jong-chul or the defendant company is limited to the damage incurred due to the voluntary sale since August 31, 1999. The current share balance at the time shall be limited to the damage caused by the voluntary sale since August 31, 199, and the share balance at the time shall be deemed to be KRW 2,272, and the deposit shall be deemed to be zero.

(3) Based on the above circumstances, when considering the difference between the shares and the balance of deposits in the Plaintiff’s account was interrupted on August 31, 1999 immediately before the commencement of voluntary sale and November 26, 1999, Samsung C&T shares reduced to 300 shares (2,272 shares - 1,972 shares), while deposit increase to 6,929,579 won. Accordingly, the Plaintiff’s shares of Samsung C&T were converted into the amount of money at the price of shares as of November 26, 1999 at the time of the voluntary sale and purchase (300 shares x 22,300 shares x 300 shares x 929,979 shares). The Plaintiff’s deposit money at the time of the sale and purchase of Samsung C&T shares was 6,929,579 won (the Plaintiff’s deposit in the Plaintiff’s account at the time of 199.19,969).

Therefore, the plaintiff's claim of this case, which is premised on the occurrence of damage to the plaintiff due to the voluntary sale of Kim Jong-chul, is without merit.

C. The plaintiff asserts that the defendant company's voluntary sale of Kimmun-gu's lag without any cause, acquiring the amount equivalent to the fees withdrawn from the plaintiff's account, and thus, it should be returned as unjust enrichment, or that the plaintiff should be charged with mental suffering with money. However, even if Kim Jong-gu returned a large number of sales and purchase through voluntary sale, and thus, the commission was withdrawn from the plaintiff's account, as long as the total amount of the value of the shares and the deposit in the plaintiff's account increases without a decrease in the value compared to before and after the voluntary sale period, it cannot be deemed that the damage was caused to the plaintiff due to voluntary sale, and ② there is no other material to recognize that the plaintiff was specially suffering from mental suffering. Therefore, the plaintiff's above argument is without merit, and there is no need to further examine it.

3. Conclusion

Therefore, the judgment of the court below with the same conclusion is just, and the plaintiff's appeal of this case is dismissed.

Judges Lee Jae-de (Presiding Judge) Stabilization