Plaintiff Co., Ltd. (Attorney Choi Ho-ho, Counsel for plaintiff-appellant)

Defendant 1 and one other (Law Firm Rate, Attorneys Appointment and one other, Counsel for the defendant-appellant)

August 29, 2003

1. The plaintiff's lawsuit against the defendant 2 shall be dismissed.

2. Defendant 1 Co., Ltd. shall pay to the Plaintiff 223,397,794 won and 5% per annum from March 7, 2002 to September 26, 2003; and 20% per annum from the next day to the full payment date.

3. The plaintiff's remaining claims against defendant 1 corporation are dismissed.

4. Of the costs of lawsuit, the part arising between the plaintiff and the defendant 2 shall be borne by the plaintiff, while the part arising between the plaintiff and the defendant 1 corporation shall be divided into two parts and one of them shall be borne by the plaintiff and the other by the defendant 1 corporation.

5. Paragraph 2 can be provisionally executed.

The defendants pay to each plaintiff 466,795,58 won with 5% interest per annum from March 6, 2002 to May 31, 2003, and 20% interest per annum from the next day to the full payment date.

1. Basic facts

The following facts are not disputed between the parties, or there is no dispute between the parties, it is recognized that the evidence No. 1-2, evidence No. 2, evidence No. 3, evidence No. 4-1 to No. 4, evidence No. 4-2, evidence No. 5-1, 2, 3, 5, 9, evidence No. 6-1 to No. 11, evidence No. 7, evidence No. 8, evidence No. 12, and evidence No. 13 as a result of Defendant 2's personal examination, and each statement of evidence No. 4, evidence No. 13, and evidence No. 13 are believed.

(a) Parties, etc.;

The plaintiff (hereinafter the plaintiff company) is a corporation that operates agricultural machinery manufacturing business; the defendant 1 corporation (hereinafter the defendant company; the defendant company) is a corporation that sells and purchases securities on consignment, etc.; the defendant 2 is a person who has been engaged in stock sales, etc. as the vice head of the Eunpyeong Housing Site Point of the defendant company from April 2001. The non-party 1 is a person who is in charge of accounting and fund management of the plaintiff company while he is in charge of accounting and fund management of the plaintiff company.

B. On August 13, 2001, Nonparty 1 opened a bond deposit account with repurchase agreement (Account Number omitted) at the location of the Defendant Company’s Pyeongtaek Housing Site in the name of the Plaintiff Company. On March 6, 2002, Nonparty 1 deposited 500,000 won of surplus funds in the said account.

C. Defendant 2, as seen above, deposited KRW 500,000 in the bond deposit account with repurchase agreement under the name of the Plaintiff Company, agreed that the deposit amount of KRW 500,000 shall be deposited, and the deposit amount of KRW 500,000,000 deposited in the above account with Nonparty 1, which is managed by Nonparty 1 as a financial director of the Plaintiff Company, would lead to the occurrence of profits by making an investment in stocks of the Plaintiff Company in the future. On March 7, 2002, around 08:50, Defendant 2 converted the above account of the housing site of the Defendant Company into a stock consignment account that enables stock investment, and made an investment of KRW 500,00,000,000 deposited in the above account from the above date to September 23, 200 of the same year.

D. Defendant 2 paid KRW 20,000,000, which is a half of the earnings, from Nonparty 1 around March 18, 2002, and KRW 20,000,000, which is a half of the earnings, from around April 8, 2002, according to the promise to divide profits from stock investment into half of the earnings, and paid KRW 40,000,000 in total by receiving each payment around April 8, 200, but thereafter, at the time of the completion of stock investment, losses incurred due to stock investment began to occur, and at the time of the completion of the stock investment, only the balance of KRW 33,204,412 was left in the stock consignment account.

E. As above, Defendant 2: (a) asked Nonparty 1 to leave the place of escape in three times from September 23, 2002 to September 25, 2002; and (b) asked Nonparty 1 to leave the place of escape; (c) Nonparty 1 voluntarily withdraws the Plaintiff Company’s funds under his control and bring the money for the purpose of escape; (d) withdrawn KRW 516,350,000, which was deposited in the Plaintiff Company’s ordinary deposit account at the Dobong-dong branch of the NAF and the Y branch of the NAF; and (e) released KRW 140,000,000, which was part of them, to Defendant 2’s custody at Defendant 2; and (e) released it to the place of intermediation.

2. Judgment on the main defense of this case

Defendant 2, in collusion with Nonparty 1, arbitrarily useful KRW 500,000,000 on stock investment in the Plaintiff Company’s repurchase agreement constitutes a tort against the Plaintiff Company. As to the Plaintiff Company’s assertion that Defendant 2 is liable for compensating for damages arising therefrom, Defendant 2 asserts to the effect that the instant lawsuit against Defendant 2 of the Plaintiff Company is unlawful, since it was filed after the Plaintiff Company’s rejection agreement was made.

Therefore, according to the following facts, Eul evidence 1, Eul evidence 2, Eul evidence 5-2, Eul evidence 5-2, 3, 4, 6, Eul evidence 6-2, 7, and 11, defendant 2 found non-party 2 who is the representative director of the plaintiff company around October 4, 2002, divided the profits from stock investment into 40,000 won and 516,350,000 won of the plaintiff company's funds were arbitrarily embezzled, and the non-party 1's whereabouts and 50,000 won were not known to the purport that the non-party 2 would not be able to claim compensation for damages due to the above non-party 1's embezzlement of 50,000 won, and the non-party 1 would not claim compensation for damages due to the above non-party 2's embezzlement of 140,000 won against the defendant company's funds.

3. Claim against the defendant company

(a) Occurrence of liability for damages;

According to the above facts, in collusion with the non-party 1, the defendant 2 converted the bond deposit account under the name of the plaintiff company into a stock consignment account capable of a stock transaction, and traded shares with the money deposited in the above account. Although the defendant 2's act was conducted for the purpose of his own interest by abusing his position, it constitutes a case of causing damage to the plaintiff company with respect to the execution of his business. Thus, the defendant company is obligated to compensate for the amount of KRW 466,795,588 (the bond deposit account 500,000,000 - the bond deposit account 33,204,412 won) claimed as damages by the plaintiff company, unless there are other special circumstances as the defendant 2's employer.

B. Determination as to the defense of the defendant company

(1) The Defendant Company has first exercised due care in the appointment and supervision of Defendant 2, and even if not, in the instant case, the Defendant Company should be exempted from the Defendant Company’s employer liability because it falls under a case where the Defendant Company suffered damage even if due care was exercised. However, there is no evidence to acknowledge that the Defendant Company fulfilled its duty of due care in the appointment and supervision of the Defendant Company. As long as Defendant 2, an employee of the Defendant Company, in collusion with Nonparty 1, who is an employee of the Plaintiff Company, has committed a duty of due care in the appointment and supervision of the Plaintiff Company, it seems that the Defendant Company could prevent the occurrence of damage if the Defendant Company breached

(2) Next, Defendant 2 argues to the effect that Defendant 2 should be exempted from Defendant 2’s employer’s liability on the ground that Defendant 2 knew, or did not know, that Defendant 2’s act did not constitute an execution of business, inasmuch as Nonparty 2’s act was aware of the aforementioned act of participation in the Plaintiff Company, inasmuch as Nonparty 1, who had the comprehensive power of attorney on the management of the Plaintiff Company’s funds, was well aware of the aforementioned act of the Plaintiff Company, he did not know, or did not know, due to gross negligence, that Defendant 2’s act was not an execution of business.

However, the meaning of "in relation to the execution of an employee's business", which is the requirement for an employer's liability under Article 756 of the Civil Act, is that if an employee's unlawful act is objectively deemed to be an act of an employer's business, an act of an office, or an act related thereto, such an act shall be deemed to have been performed without considering the actor's subjective circumstances. As such, the reason why the employee excludes the subjective circumstances of the employee from the criteria for determining the relevance to the performance of an office and only considering the circumstances on the part of the employer who made the appearance of an act is to protect the victim's trust who has entered into a transactional relationship with the employee's belief that the employee's act is deemed to be an act of an employer's business or an act of office execution, and if the employee was aware of or did not know that the employee's act does not constitute an act of office

Therefore, it is mainly problematic in the area of whether the victim has trusted the appearance of the employee in good faith or without gross negligence, such as the tort caused by the victim's subjective circumstances in the transactional relationship with the employer. In the case of a tort committed regardless of the transactional relationship, in principle, there is no room to see whether the victim has trusted the appearance of the employee. In this case, it is reasonable to judge whether the employer is related to the execution of affairs by comprehensively taking into account the circumstances of the perpetrator rather than the victim's subjective circumstances and the necessity of trust protection.

In the instant case, the following facts are examined: (a) in collusion with Nonparty 1, who is the financial director of the Plaintiff Company, the act of changing the deposit account of the Plaintiff Company into a stock consignment account; (b) the act of managing the Plaintiff Company’s funds; (c) the act of managing the bond deposit account and the stock consignment account falls within the scope of the Defendant Company’s business affairs; and (d) the act of managing the Plaintiff Company’s funds as the financial director of the Plaintiff Company constitutes one’s own duties or duties related thereto; (c) on the other hand, Nonparty 1 cannot be deemed as having an external power of representation or power of representation; (d) there is no evidence to acknowledge this otherwise; and (e) even if Nonparty 1 was aware of the fact that the employee of the Plaintiff Company did not constitute lawful execution of business affairs, as in the instant case, the act of Nonparty 1 conspired with the employee of the Plaintiff Company to supervise the Plaintiff Company to engage in the business affairs, and thus, it cannot be said that there was no gross negligence between the Plaintiff Company and the Plaintiff Company’s gross negligence in the Plaintiff Company’s business affairs of the Plaintiff Company.

Therefore, the above defense of the defendant company is without merit.

C. Scope of damages

(1) Fruits offsetting

As seen earlier, Defendant 2’s employee’s loss incurred to the Plaintiff Company is equivalent to KRW 466,795,58. However, according to the evidence Nos. 9, 11-1, 2, 3, and 4 of evidence Nos. 11, 3, and Defendant 2’s personal examination result, Defendant Company notified the Plaintiff Company of monthly transaction during the period of voluntary stock purchase and sale. In preparing half-yearly report around July 2002, Plaintiff Company did not grasp the exact financial status due to the method of obtaining the certificate of balance through the Defendant Company. In preparing half-yearly report around July 2002, Plaintiff Company did not automatically state its claim with repurchase agreement “cash and deposit,” and without considering these circumstances, it can be recognized that Defendant Company’s loss was equal to or greater than 5,00,000 won, and it can be seen that Nonparty 1 was negligent in calculating the amount of damages due to Nonparty 1’s negligence. In light of these circumstances, it is reasonable to deem that Nonparty 1’s fault was more than the Plaintiff Company’s fault.

(2) Loss offsetting

The defendant company's assertion that the defendant 2 paid part of the amount of damages to the plaintiff company, and according to the evidence Nos. 5-10 of the evidence No. 5-10, the defendant company can recognize that the defendant 2 paid the amount of 20,000,000 won to the plaintiff company as criminal agreement amount, and as a matter of principle, the amount paid at the time of criminal agreement shall be deemed to have been paid as part of the amount of damages. Thus, it is reasonable to deduct the amount of 10,000,000 won corresponding to the ratio of negligence of the defendant company from the amount of damages to be paid by the defendant company (see Supreme Court Decision 93Da53696, Feb. 22, 194, etc.).

D. Sub-committee

Therefore, the defendant company is obligated to pay damages for delay at the rate of 223,397,794 won after deducting 10,000,000 won from 23,397,794 won out of 50% of the damages of the plaintiff company and 5% per annum from March 7, 2002 to September 26, 2003, which is the date of commencing illegal acts of the defendant 2, which is the date of sentencing, from March 7, 2002 to September 26, 2003, and 20% per annum from the next day to the date of full payment. (The plaintiff company is obligated to pay damages for delay at the rate of 5% per annum from March 6, 202 to May 31, 2003 to the date of its full payment. However, the defendant company is not obligated to pay damages for delay at the rate of 20% per annum under the Special Act on the Promotion, etc. of Legal Proceedings until the date of its full payment.

4. Conclusion

Therefore, the plaintiff company's lawsuit against the defendant 2 is unlawful and thus is dismissed. The plaintiff company's claim against the defendant company against the defendant company shall be accepted within the above scope of recognition, and the remaining claims shall be dismissed as they are without merit. It is so decided as per Disposition.

Judges Kim Chang-sik (Presiding Judge)