2014Da13235 Guarantee obligations

A

Korean Bank, Inc.

Seoul High Court Decision 2013Na38307 Decided January 23, 2014

September 15, 2015

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Seoul High Court.

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

1. The phrase "in relation to the performance of an employee's business, which is an element for an employer's liability under Article 756 of the Civil Act," means that an employee's unlawful act is objectively deemed to be an act of performing an employee's business activities, performing affairs, or performing affairs related thereto, without considering any subjective circumstances. Here, whether an employee's unlawful act is objectively related to the employee's performance of affairs should be determined by considering the degree of the employee's original duty and tort, and the degree of the employee's occurrence of risks to the loss and the degree of the employee's lack of preventive measures. Even in cases where an employee's unlawful act appears to fall within the scope of external performance of affairs, if the victim knew that the employee's act does not constitute an act of performing affairs by the supervisor of affairs on behalf of the employer or the employer, or he/she was unable to know by the victim himself/herself or by gross negligence (see, e.g., Supreme Court Decision 2011Da41529, Nov.

2. The lower court determined, based on the evidence of its employment, that the Plaintiff issued the instant payment guarantee certificate that is null and void from G, the head of the F branch office of the Defendant Bank, on November 16, 201 through D, the actual spouse of the Plaintiff, and as security, lent KRW 50 million to B on November 16, 201, KRW 200 million on November 23, 201, KRW 60 million on January 13, 201, KRW 30 million on January 13, 2012, and KRW 30 million on February 6, 2012, the lower court rejected the Defendant bank’s act of issuing the instant payment guarantee certificate as the user of the Defendant bank, which was objectively related to the execution of its affairs, and thus, rejected the Plaintiff’s allegation that the Plaintiff’s act of issuing the instant payment guarantee certificate was not attributable to the Plaintiff’s gross negligence prior to the issuance of the instant payment guarantee certificate within the scope of KRW 200,000.

3. Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the record, the lower court is justifiable to have determined that the Defendant is liable to compensate the Plaintiff as an employer of G for damages with respect to KRW 500 million loans of November 16, 201 and KRW 100 million loans of November 23, 201. In so doing, contrary to what is alleged in the grounds of appeal, the lower court erred by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the victim’s intentional or negligent act

There is no violation of law.

4. However, it is difficult to accept the part that the lower court, however, imposed on the Defendant Bank’s employer liability on the loan amounting to KRW 60 million on January 13, 2012 (hereinafter “instant loan”), for the following reasons.

A. Review of the reasoning of the lower judgment and the record reveals the following facts.

1) From the B on November 15, 201, D loaned the funds to be used to meet the equity capital ratio of the Defendant bank, and if it lends 600 million won to be used as the above funds, D would pay the principal and interest 20 days after 20 days. In order to secure payment, D would obtain a payment guarantee certificate issued by the Defendant bank equivalent to KRW 800,000,000,000,000,000 from G on November 16, 2011, and thereafter lent the instant payment guarantee certificate issued from G to B, including KRW 50,000,000,000,000,000,000 won, etc., as requested by B.

2) Meanwhile, D appeared to be a witness in the first instance trial of this case and lent 600 million won to the head of the branch and stated that D additionally lent 90 million won (which seems to refer to 60 million won and 30 million won as loans of this case on February 6, 2012) under the pretext that B shall provide personnel affairs. In the relevant accusation case, D loaned 90 million won and stated that D loaned 90 million won to the head of the branch. In addition, on December 24, 2012, 200, "B first lent 60 million won to G, and later lent 2.5 billion won to the effect that B lent 10 billion won to B at the Industrial Bank of Korea's expense to pay 60 billion won at the discount of the bill, it was necessary to lend 100 million won to B at the time of the bill to the effect that B loaned 2.5 billion won and 100 billion won as loans to B issued 100 million won.

3) B testified to the effect that “B was present as a witness in the original trial and testified to the effect that “it was an additional loan and borrowed money for 5 billion won or more in interest on the instant loan from J” was required.

B. The following circumstances revealed in the facts and records as above, i.e., ① a fund of KRW 600 million is required to meet the equity capital ratio of the Defendant bank at first, and for this purpose, the Defendant bank issued a letter of payment guarantee of KRW 800 million at the Defendant bank for the purpose of securing the above KRW 600 million. G also issued the instant letter of payment guarantee for the purpose of securing the above KRW 600 million, and (ii) the Defendant bank as a general public may issue a letter of payment guarantee for an individual to cooperate in the process of attracting deposits in accordance with the law in order to meet the equity capital ratio.

Therefore, the above payment guarantee issuance and loan loan of KRW 600 million may be deemed to be an act related to the execution of the affairs of the Defendant Bank objectively in appearance. However, if B borrowed funds from the Plaintiff on the ground that the payment guarantee issuance of the instant payment guarantee and the loan of KRW 600 million based on the loan still remains, the original purpose of issuing the payment guarantee and the payment guarantee limit remains, and there is room to deem that the additional loan is not objectively related to the execution of the Defendant Bank’s affairs, or even if it appears to fall under the act of execution of the Defendant Bank’s affairs, even if it is deemed to fall under the act of execution of the Defendant Bank’s affairs, it is difficult to view that the Plaintiff did not know that it falls under the act of execution of the Defendant Bank’s affairs. ③ According to the Plaintiff’s statement or the Plaintiff’s statement, the loan title of the instant loan can be deemed to be an act of execution of the Defendant Bank’s affairs, which is not related to the original purpose of the Defendant Bank’s payment guarantee or the interest on the loan of KRW 600 million.

Therefore, the lower court should have determined whether the Plaintiff was unaware of the fact that the Plaintiff was not aware of the fact that the Plaintiff was not related to the Defendant Bank’s business operation, by examining the developments leading up to borrowing the instant loan from the Plaintiff, the use of the instant loan, and whether G was involved.

Nevertheless, without examining the above issues, the lower court determined that the instant loan constitutes damage incurred by G in connection with the execution of the business affairs of Defendant Bank. In so doing, the lower court erred by misapprehending the legal doctrine on employer liability, thereby failing to exhaust all necessary deliberations. The allegation contained in the grounds of appeal on this point is with merit.

C. Of the judgment below, the part of the loan of this case in this case should be reversed for the above reasons. The court below recognized the plaintiff's damages including the loan of this case as the total of 660 million won, and limited the defendant's liability ratio to 70% in consideration of the plaintiff's negligence. In the case where the scope of the plaintiff's damages varies, the plaintiff's fault ratio needs to be re-determined. Thus,

5. Therefore, the part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Jae-soo

Justices Kim Yong-deok

The Chief Justice Park Jae-young

Justices Kim Gin-young