[1] Whether an act jointly related to the occurrence of damage to a tort, such as the acquisition of stolen goods by embezzlement, can be recognized as a joint tort (affirmative)

[2] In a case where Eul et al. who secured management rights of Eul et al. entered into a contract to sell Eul's stocks and management rights to Byung et al., and Byung lent negotiable certificates of deposit issued with Gap's funds and offered Byung as security to the bond-holder's company Byung et al., the case holding that the judgment below erred in the misapprehension of legal principles, etc. on the ground that Byung's embezzlement and negotiable certificates of deposit acquisition are objectively related joint relations, even if Byung did not offer specific public offering with Byung's embezzlement

[1] Joint tort under the Civil Act is established when multiple persons’ objectively related joint acts cause damage to others, and it does not require mutual solicitation among the actors, as well as common intent or common perception. In addition, such joint acts may be recognized not only in cases where a tort is jointly committed, or aid and abetting another person, but also in cases where a joint act is jointly related to the occurrence of damage, such as acquisition of stolen goods from embezzlement.

[2] Where Eul et al. who secured management rights as the representative director of Gap corporation entered into a contract for sale of Gap corporation's stocks with management rights to Byung et al. who had no particular property, and Byung borrowed negotiable certificates with Gap's funds after the conclusion of the contract, offered them as security to the bond company Byung et al., the case held that the judgment below erred in the misapprehension of legal principles as to joint tort, on the ground that it is sufficient to see that Byung et al. was aware of the fact that Byung was issued negotiable certificates with Gap's funds even if Byung did not offer specific public offering for embezzlement; and further, it is sufficient that Byung et al. was objectively related to embezzlement and acquisition of negotiable certificates with Byung's funds.

[1] Articles 750 and 760 of the Civil Act / [2] Articles 750 and 760 of the Civil Act

[1] Supreme Court Decision 2000Da13900 Decided September 29, 200 (Gong2000Ha, 2201) Supreme Court Decision 2001Da2181 Decided May 8, 2001, Supreme Court Decision 2005Da47014, 47021, 47038 Decided January 26, 2006 (Gong2006Sang, 313)

E.S. Co., Ltd. (LLC, Attorneys Park Dong-dae et al., Counsel for the plaintiff-appellant-appellant)

Defendant 1 and two others (Law Firm LLC et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2011Na33858 decided April 27, 2012

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Joint tort under the Civil Act is established when multiple persons’ objectively related joint acts cause damage to others, and neither conspiracy nor common intent nor common perception among the actors is necessary. In addition, such joint acts may be recognized as jointly related to the occurrence of damage, such as the acquisition of stolen goods from embezzlement, as well as the joint act of obtaining stolen goods from embezzlement (see Supreme Court Decision 2001Da2181, May 8, 2001, etc.).

2. Review of the reasoning of the lower judgment and the evidence duly admitted by the lower court reveals the following facts.

(1) The Plaintiff was established on July 10, 1997 for the purpose of manufacturing and selling devices and equipment for semiconductor manufacturing and is a KOSDAQ-listed corporation, and the Defendants are engaged in the bond business in the name of the Plaintiff. Nonparty 1, a representative director of the Plaintiff, who secured the Plaintiff’s management right, agreed to sell the Plaintiff’s shares to Nonparty 2 and 3, together with the management right of the Plaintiff’s company, to Nonparty 18 billion won (the share of Nonparty 1, the amount of KRW 8.2 billion, and the amount of KRW 9.8 billion). Nonparty 3, who did not have any particular property at the time, borrowed 18 billion from Defendant 2, etc. around April 11, 2009.

(2) On April 13, 2009, when the non-party 4 had agreed to lend the bonds of KRW 10 billion at the morning, the non-party 3 did not lend the bonds of KRW 10 billion to the defendant 1, and the non-party 3 loaned the bonds of KRW 10 billion to the defendant 1. In response, the defendant 1 eventually borrowed the above KRW 10 billion from the above KRW 18 billion to the defendant 3 and KRW 15 billion (total KRW 16.5 billion), and the remaining KRW 1.5 billion to the non-party 5, a bond company, the same borrower.

(3) Around 14:00 on April 13, 2009, Defendant 1 gave 4 billion won to Nonparty 3, and Nonparty 3 given some of them to Defendant 2 and Defendant 3 so that he may pay 9.8 billion won to Defendant 2 and 3 the purchase price of shares held in Austria. Nonparty 3, around 15:00 on the same day, had Defendant 1 enter Defendant 1 as the Plaintiff’s office in Hadong with the remaining amount of 6 billion won. Defendant 1 met Nonparty 5 in front of the Plaintiff’s office, but he became aware that the Plaintiff’s shares had already been provided as security to Nonparty 5. Accordingly, Defendant 1 asked Nonparty 3 to enter into the Plaintiff’s shares acquired from Nonparty 1, and Nonparty 3 held that the Plaintiff’s shares acquired from Nonparty 1 would have already been provided as security in lieu of having already been provided as security.

(4) In the name of Defendant 1’s office, Nonparty 2, etc. paid KRW 8.2 billion (including KRW 300 million already paid) to Nonparty 1, including KRW 6.0 billion borrowed from Defendant 1, and demanded Nonparty 1 to change documents related to the financial affairs of the Plaintiff company. Nonparty 1, through employees, caused the Plaintiff’s passbook, seal, etc. to bring about Nonparty 2 (the Plaintiff’s password was known to Nonparty 2), and Nonparty 2 and 3 received the Plaintiff’s shares and management rights from Nonparty 1. At the same time, the instant management right transfer contract was concluded with the effect that Nonparty 2 and 3 received the Plaintiff’s shares and management rights from Nonparty 1. On the other hand, Defendant 2 and 3 paid KRW 9.8 billion in the name of Nonparty 3, and Nonparty 3 concluded a contract to acquire the Plaintiff’s shares from Osung to purchase the Plaintiff’s shares from Osung.

(5) At the request of Nonparty 3, Nonparty 1 transferred approximately KRW 3 billion from 16:09 to 16:12 on the same day from the Plaintiff’s other account to the instant account. At around 16:35, Nonparty 1 transferred KRW 8.3 billion from the Plaintiff’s securities company’s account to the instant account for partial return. Nonparty 1 transferred KRW 3.5 billion from the Plaintiff’s securities company’s securities company’s account to the instant account at around 17:1, to the instant account, and had the Plaintiff gather funds exceeding KRW 16.5 billion.

(6) Around the time when the management right transfer contract of this case was concluded, Nonparty 3 first left the Seoul Office of the Plaintiff Company and went to Korea bank application office. At this time, Nonparty 3 opened a new account in his name and obtained a password. Nonparty 3 transferred KRW 16.5 billion from the instant account to the said new account by using the passbook, stamp, password, etc. Nonparty 3. Nonparty 3 visited the Defendants at around that time, Nonparty 3 obtained a certificate of deposit equivalent to the same amount of KRW 16.5 billion (hereinafter “instant certificate of deposit”). Nonparty 3 received a certificate of deposit (hereinafter “the instant certificate of deposit”) from Defendant 1 (1 billion won), Defendant 2 (1.5 billion won), Defendant 2 (1.5 billion won), and Defendant 3 (5 billion won) (5 billion won).

(7) As above, in the prosecutor’s investigation process, Defendant 1 stated that “I would like to know that I would issue the instant certificate of deposit to Nonparty 3 under the name of the Plaintiff Company and the bank? I would like to know who I would like to do so.” In addition, Defendant 2 stated that “I would like to purchase the certificate of deposit with the Plaintiff Company’s funds at that time. I would like to know that I would like to know that I would have purchased the instant certificate of deposit with the Plaintiff’s funds.” Nonparty 3 also stated that “I would like to know that I would have purchased the instant certificate of deposit with the Defendant Company’s funds. At that time, Nonparty 6, the head of our bank depository, Nonparty 3, as the head of our bank bank, stated that “I would issue the instant certificate of deposit with two investors and was to issue it under the name of Nonparty 3, and eventually, to issue it under the name of Nonparty 3, etc. at the criminal trial against Nonparty 3 et al. at the criminal trial against Nonparty 3 et al.

(8) On April 14, 2009, Nonparty 1 knew that the Plaintiff Company’s funds were deposited to Nonparty 3’s passbook and deposited to Nonparty 3’s passbook, and asked Nonparty 3, etc. to cancel the deposit from Nonparty 3’s account and request the cancellation of the deposit from this case’s account on April 14, 2009. Our bank cancelled the deposit from this case’s account to Nonparty 3’s account, and corrected that this case’s CD was issued from this case’s account. On the same day, Nonparty 3 demanded Defendant 2, etc. to request Defendant 2, etc. to request the Bank to accept the instant certificate of deposit. However, as prosecutor’s investigation was initiated on embezzlement of Nonparty 3, etc., and the Plaintiff Company’s temporary shareholders’ meeting was postponed on June 2, 2009, the Defendants withdrawn the entire amount of this case’s CD on June 3, 2009 and withdrawn on June 4, 2009.

(9) Nonparty 3 and 2 were indicted for embezzlement of KRW 16.5 billion of the Plaintiff Company’s funds in collusion, and was sentenced to imprisonment on December 15, 2009. The above judgment became final and conclusive on September 9, 2010 by appeal and dismissal of appeal.

3. The above facts and records reveal the following circumstances. ① The Defendants appeared to have not taken into account Nonparty 3’s financial resources despite lending the acquisition price of KRW 16.5 billion to Nonparty 3, and in fact, Nonparty 3 did not have any financial resources. Therefore, the Defendants could have known the fact that the source of this case’s certificate of deposit is the Plaintiff Company. ② Defendant 1 already accepted the Defendants’ promise to offer negotiable certificates of deposit as security instead of being unable to offer the shares originally promised from Nonparty 3 as security before entering into the instant management right transfer contract. As such, Nonparty 1’s promise to offer negotiable certificates of deposit was confirmed from Nonparty 3’s place of conclusion of the above contract that Nonparty 1 would not have been able to obtain all negotiable certificates of deposit issued with the Plaintiff Company’s funds as security, and it was more likely that Nonparty 3’s 5’s negotiable certificates of deposit was issued with the Plaintiff Company’s funds as security, and it was more likely that the Defendants were able to receive all negotiable certificates of deposit issued with the Plaintiff Company’s funds as security.

In full view of the aforementioned circumstances, even if the Defendants did not make specific public subscriptions against the embezzlement of Nonparty 3, etc., there is sufficient room to deem that Nonparty 3 was aware at least of the fact that Nonparty 3 withdrawns Plaintiff’s funds and issued the instant certificate of deposit. Furthermore, there is sufficient room to deem that Nonparty 3’s embezzlement by Nonparty 3 and the Defendants’ acquisition of the instant certificate of deposit objectively related co-ownership.

Nevertheless, it is difficult to view that Defendant 1 actively demanded to issue negotiable certificates of deposit, and the Defendants received stocks that are not negotiable certificates of deposit as security, and the Defendants seem to have already issued this certificate of deposit before arrival at the above negotiable point (in light of Nonparty 3’s testimony (Records 743 pages) in the criminal case of Nonparty 3, it is doubtful whether the Defendants may be deemed to have arrived at the above negotiable point after the issuance of this case’s certificate of deposit). The court below rejected the Plaintiff’s claim of this case on the ground that it is difficult to view that Nonparty 3 was aware or could have been aware of the fact that Nonparty 3 withdrawn Plaintiff’s funds and issued this case’s certificate of deposit, and thus, the court below erred by misapprehending the legal principles on joint tort or by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules. The ground of appeal pointing this out has merit

4. The judgment of the court below is reversed without examining the remaining grounds of appeal, and the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Chang-suk (Presiding Justice)