East Asia Construction Industry Co., Ltd. (Attorneys Lee Ho-ho et al., Counsel for the defendant-appellant)

Han Bank Co., Ltd. (Law Firm Sejong, Attorneys Song Young-young et al., Counsel for the plaintiff-appellant)

December 12, 2012

Seoul Central District Court Decision 2010Gahap47174 Decided August 11, 2011

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

3. The Plaintiff shall pay to the Defendant 10,317,895,445 won with the return of the provisional payment and 5% interest per annum from August 16, 2011 to January 25, 2013, and 20% interest per annum from the next day to the date of full payment.

4. The total cost of the lawsuit (including the cost of filing an application for the return of provisional payments) shall be borne by the Plaintiff.

1. Purport of claim

The defendant shall pay to the plaintiff 8,176,671,952 and among them 7,620,383,926 won with 6% per annum from November 5, 2009 to the service date of a copy of the complaint of this case, and 20% per annum from the next day to the day of complete payment.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

3. Purport of request for the return of provisional payments

Paragraph (3) of this Article.

1. Basic facts

(a) Conclusion of term deposit contracts, etc.;

(1) On November 4, 2008, the Plaintiff entered into three fixed deposit contracts (hereinafter “the instant deposit contract”) with the Defendant (the competent branch: ○○○○○ branch”) as follows and deposited KRW 7,620,383,926 (hereinafter “the instant deposit account”) in order to obtain a guarantee from the construction mutual aid association with respect to the warranty liability of the △△ Electric Complex Corporation under construction.

3 (Account Number 3 omitted) 〃 3,620,383,926 〃 3 (Account Number 3 omitted) 〃 3 (Account Number 3 omitted) 〃 3,620,926 〃 4 (Account Number 1 omitted) 2,00,000 per annum 7.3% per annum 4, 2009, and 7.3% per annum 4, 2009.

(2) On May 11, 2001, the Plaintiff was declared bankrupt and was unable to receive a warranty bond from the Construction Mutual Aid Association with the Plaintiff’s credit, and the Plaintiff deposited the amount equivalent to the warranty bond in the form of a fixed deposit with the Defendant et al., and issued a warranty bond from the Construction Mutual Aid Association.

B. Illegal withdrawal of the instant deposit, etc. by public offering between Nonparty 1 (the Nonparty in the judgment of the Supreme Court) and Nonparty 2

(1) At the time of entering into the instant deposit contract, Nonparty 1, who was working as the director of the Plaintiff’s financial team, requested Nonparty 2 to withdraw and use the instant deposit from Defendant ○○○ Branch and the Vice Director of the Construction Mutual Aid Association in the first place with Nonparty 2, who was in a friendly relationship with the Plaintiff as a senior ship of high school, and obtained consent from Nonparty 2.

(2) Accordingly, Nonparty 1 entered the term deposits in bank business practices in the form of “Pledge”, or submitted them to the Construction Mutual Aid Association through the Plaintiff’s business order team with the rubber seal affixed, and then delivered a written request for consent of pledge signed and sealed by the Plaintiff and the Construction Mutual Aid Association to the Defendant, and the Defendant, even if the Plaintiff and the Construction Mutual Aid Association did not submit the documents necessary for the establishment of a pledge, such as a written request for consent of pledge signed and sealed by each of the Plaintiff and the Construction Mutual Aid Association, upon receipt of the said documents, requested Nonparty 2 to the effect that the pledge would not be established even if they were not submitted, and Nonparty 2, upon receipt of such a request, requested Nonparty 1 to withdraw the deposit of this case by means of not taking the procedures of pledge such as entering the pledge in the bank computer system, etc.

(3) Nonparty 1 reported the loss of the passbook to the Defendant as if the passbook was lost because the passbook was kept in the construction mutual aid association, and requested the payment of the deposit as if it were terminated even during the term deposit contract of this case. The Defendant paid to Nonparty 1 the sum of KRW 4 billion deposited in the account on November 24, 2008 and KRW 3,620,383,926 deposited in the account on December 2, 2008 (hereinafter “the instant deposit withdrawal”).

C. Fraud by fraud in the name of Nonparty 1 through illegal withdrawal in the Defendant MT account in the name of the Plaintiff

On the other hand, before withdrawing KRW 4 billion from the above (1) account and (2) account, Nonparty 1 forged the Plaintiff’s application for withdrawal on September 22, 2008 from Defendant MT (Account Number: Number 4 omitted; hereinafter “MT account”) under the Plaintiff’s name, and withdrawn it after receiving KRW 2 billion from Defendant employees who know the forged fact, and then received KRW 3 billion on October 13, 2008, KRW 150,000,000 on October 14, 2008, KRW 300,000,000 won on November 14, 2008, KRW 305,000 won on November 17, 2008, KRW 6,000,000 won on a total of KRW 305,000,000 won on September 23, 2008, KRW 208; and KRW 1305,781,208.281,26,36,206.200.

D. Deposit of the withdrawn deposit into the instant MT account and withdrawal from the MF account;

(1) On November 24, 2008, Nonparty 1 made an application for withdrawal of KRW 2 billion from the account and an application for deposit of KRW 2 billion from the account to the account of this case, and submitted it to the Defendant’s employee, and deposited KRW 2 billion from the account of this case to the account of this case, and deposited KRW 2 billion in the account of this case. By the same method, Nonparty 1 deposited KRW 2 billion from the account of this case to the account of this case, and KRW 3,620,383,926 deposited in the account of this case from each of the above withdrawal dates.

(2) Nonparty 1, by forging an application for withdrawal, took advantage of the amount of KRW 1.5 billion from the instant MT account on December 9, 2008, and KRW 800 million on December 26, 2008, and the Plaintiff withdrawn KRW 5,405,536,354, which had been in existence in the instant MT account on December 30, 2008 and used it as operating funds.

E. Criminal punishment against the non-party 1 and 2

On April 2, 2010, Nonparty 1 and Nonparty 2 were detained due to the above crimes and were sentenced to imprisonment for 22 years and 22 years and 2 years, and Nonparty 2 was sentenced to imprisonment for 5 years (Seoul East Eastern District Court 2009Gohap257). On July 9, 2010, the Seoul High Court sentenced Nonparty 1 to imprisonment for 22 years and 6 years, and Nonparty 2 was sentenced to imprisonment for 4 years (Seoul High Court 2010No1064) and on November 11, 2010, the appeals filed by Nonparty 1 and Nonparty 2 were dismissed (Supreme Court 2010Do9876).

F. The Plaintiff’s termination of the deposit contract of this case

On the other hand, the Plaintiff notified the Defendant of the termination of the deposit contract of this case on the ground that the deposit contract of this case was with maturity.

[Ground of recognition] Facts without dispute, Gap evidence 1 to 4, 5, 21 evidence, Eul evidence 1 to 3, Eul evidence 17 (including each number), the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff's assertion

In collusion with Nonparty 1 and Nonparty 2, the Defendant committed a crime of embezzlement of Defendant’s funds by withdrawing the instant deposit in an unlawful manner. The Plaintiff did not have received reimbursement of the deposit claim from the Defendant, and the Defendant should return the instant deposit deposit to the Plaintiff on the ground of termination of the instant deposit contract.

B. Defendant’s assertion

(1) Failure to establish the instant deposit contract

When entering into the deposit contract of this case, Nonparty 1 asked Nonparty 2 to omit entry of a pledge right with the intention to withdraw and use the deposit of this case, and Nonparty 1 and Nonparty 2, including Nonparty 2’s receipt, planned Nonparty 1 to exclude the Plaintiff from the claim for refund of the deposit of this case, and thus, the deposit contract of this case was not lawfully constituted between the Plaintiff and the Defendant, and its actual deposit holder is Nonparty 1. Therefore, the Plaintiff’s deposit claim against the Defendant is not established.

(2) Exemption from liability pursuant to the basic terms of deposit transactions

Even if the deposit contract of this case was duly established between the Plaintiff and the Defendant, the Defendant’s employees fulfilled their duty of care as stipulated in the Defendant’s basic terms and conditions of deposit transaction, such as checking a seal imprint, confirming a password, etc., during the course of paying the instant deposit, so the instant deposit was lawfully paid to the Plaintiff. The Defendant was exempted from liability under the said terms and conditions.

(3) Formation of an expression agency

Even if the withdrawal of the deposit of this case is not a legitimate payment against the plaintiff, the non-party 1 had basic power of attorney in relation to the plaintiff's financial business, at least the plaintiff granted such authority to the non-party 1, and the defendant had justifiable grounds (faith 1 and negligence) to believe that the non-party 1 had the right to withdraw the deposit of this case. Therefore, the defendant's withdrawal of the deposit of this case to the non-party 1 constitutes an expression agent under Articles 125 through 126 of the Civil Act, and thus, it is effective as a legitimate repayment against the plaintiff.

(4) Performance to quasi-Possessor of the claim

Non-party 1, as a staff member in charge of the Plaintiff’s financial affairs, has transacted with the Defendant for a long time, not only completely furnished the Plaintiff’s passbook, etc. necessary for the withdrawal of the instant deposit, but also requested the Plaintiff to immediately deposit the instant MT account. Nonparty 1 had the appearance to believe that Nonparty 1 had a legitimate authority to exercise the Plaintiff’s deposit claim under the transactional concept, and the Defendant had such legitimate authority. Accordingly, the Defendant’s payment of the instant deposit against Nonparty 1 is valid as repayment to the creditor-based occupant.

(5) Performance to a person without authority pursuant to Article 472 of the Civil Code

Nonparty 1 withdrawn the instant deposit and deposited it into the instant MT account under the name of the Plaintiff, thereby gaining profits from acquiring a new claim for return of deposit against the Defendant. This constitutes a repayment to a person without authority under Article 472 of the Civil Act, and thus, the Plaintiff cannot seek payment of the instant deposit to the Defendant, as it becomes effective to the extent that the Plaintiff received profits.

(6) Preliminary defenses

(A) User liability for the fraud of the instant deposit

The Defendant did not know that Nonparty 1’s act of withdrawing the deposit of this case, who is an employee of the Plaintiff, was not an act of performing the Plaintiff’s business, and there was no gross negligence. The Defendant incurred damages equivalent to the deposit of this case and the damages for delay therefrom due to Nonparty 1’s act of withdrawing the deposit of this case, and thus, the Defendant holds the Plaintiff’s damage claim based on the employer’s liability. The Defendant lawfully offsets the Plaintiff’s damage claim against the Defendant by using the aforementioned damage claim as the automatic claim,

(B) User's liability for the fraud of deposits newly deposited in the instant MT account and claim for return of unjust enrichment

Of the amount of KRW 7,656,495,458, Nonparty 1 withdrawn and used KRW 2.3 billion over two occasions, and the Plaintiff also withdrawn and used KRW 5.4 billion. Under the premise that Nonparty 1’s withdrawal of the deposit in this case and deposit of the said money into the MF account is Nonparty 1’s obligation to compensate for damages against the Defendant, and that the Plaintiff does not acquire any right. Accordingly, Nonparty 1 and the Plaintiff did not have any right to the deposit deposited in the MF account. Accordingly, the Plaintiff, the employer, pursuant to Article 756 of the Civil Act, is obligated to compensate the Defendant for the interest accrued to the Defendant from the withdrawal of trust funds in this case’s account to the date of full payment, and the Plaintiff is not actually liable for the return of the deposit in this case’s account to the Defendant, and thus, the Plaintiff is not liable for the return of the deposit in this case’s account to the Defendant under the Civil Act, and thus, the Plaintiff is liable for the damages incurred to the Defendant without any legal reasons of KRW 145.4 billion.

(C) Non-party 1’s first liability for acquiring deposits in the MT account of this case

If Nonparty 1 first withdraws the deposit from the MT Account and then bears the liability for damages against the Defendant, the Defendant has the liability for damages equivalent to the above amount’s employer’s liability against the Plaintiff, who is the employer of Nonparty 1. Therefore, the Defendant shall set off the above liability for damages against the Plaintiff’s claim for the refund of the deposit within the equal amount.

3. Determination

A. Judgment on the Plaintiff’s assertion

On the other hand, in principle, the ownership of the money deposited in the deposit account of this case shall be attributed to the defendant and the plaintiff shall have the corresponding claim to return the deposit amount. In full view of the purport of the argument in Gap evidence No. 4, in order for the non-party 1 to newly enter a term deposit or terminate or withdraw the existing term deposit, the non-party 1 shall obtain approval from the regular director and the non-party 4, who is the officer of the plaintiff. In particular, the non-party 4 shall have been directly managed by the non-party 4. The deposit of this case is a construction mutual-aid association as a pledgee for the purpose of the right of pledge as to a specific construction project, and its use is strictly limited. The non-party 2 has the authority to establish, terminate, and withdraw the deposit money at the request of the defendant. Accordingly, the non-party 1 shall not be deemed to have the right to withdraw the deposit money of this case at the time of the withdrawal of the deposit of this case, and the plaintiff is still in the status of the defendant's deposit manager.

B. Judgment on the defendant's assertion

(1) Whether the contract of this case was not established between the plaintiff and the defendant

In a case where a deposit contract is concluded through a real name verification procedure under the Act on Real Name Financial Transactions and Confidentiality and the fact is clearly indicated in the statement of the deposit contract, it is reasonable to interpret that the deposit title holder, the actor, and the intent of a financial institution acting for the deposit title holder stated in the deposit contract is to be the party to the deposit contract, and to clarify the legal relationship as to the party to the deposit contract. Therefore, even if the deposit title holder takes the real name verification procedure according to the intent of the deposit title holder, and the deposit title holder was prepared with the deposit title holder as the deposit owner, it shall be limited to extremely exceptional cases where a clear agreement is reached between the financial institution and the contributor, etc. to exclude the right to claim the deposit of the deposit of the deposit title holder by denying the deposit of the deposit title holder and to vest the deposit right in the contributor, etc. by concluding the deposit contract with the deposit title holder, etc.

As seen earlier, Nonparty 1 requested Nonparty 2 to withdraw and use the instant deposit money from the Plaintiff and the Defendant and the Construction Mutual Aid Association for personal use. However, the agreement between Nonparty 1 and Nonparty 2 merely refers to the cooperation between Nonparty 2 on the premise that the instant deposit contract was duly concluded between the Plaintiff and the Defendant on the premise that the instant deposit contract was lawfully concluded between the Plaintiff and the Defendant. Furthermore, there is no dispute between Nonparty 1 and the parties that Nonparty 1 is not the contributor of the instant deposit contract, and otherwise there is no clear agreement between Nonparty 1 and the Defendant to exclude the Plaintiff’s right to claim the return of the Plaintiff’s deposit by denying the deposit contract between the Plaintiff and the Defendant, and conclude a deposit contract with Nonparty 1 to vest in the right to claim the return of the deposit money. Therefore, the Defendant’s assertion is without merit.

(2) Whether exemption is granted pursuant to the basic terms of deposit transactions

The gist of the defendant's assertion of exemption is that the defendant is exempted from liability on the ground that the person without authority loses the passbook or the seal imprint as stipulated in the basic terms and conditions of deposit transaction at the time of the payment of the deposit in this case, and the bank has neglected to pay the deposit at the time of the payment in the form of due process, but the bank has neglected to pay the required ordinary attention as a bank at the time of filing a personal report or the report on the loss of the passbook, even if it had gone through due process at the time of payment, it cannot be asserted without negligence in light of the whole progress. Therefore, there is no dispute between the parties as to the fact that the difference between the seal imprint affixed on the power of attorney submitted in the process of re-issuance of the passbook and the seal imprint affixed on the corporate seal imprint. In light of the above legal principles, the defendant cannot be deemed to have fulfilled the duty of due care required in relation to the withdrawal of the deposit in this case.

Furthermore, as seen earlier, Nonparty 2, who was working as the vice head of Defendant 1’s branch, did not follow the procedures of establishing a pledge on the deposit of this case upon Nonparty 2’s request by Nonparty 1 and did not follow the procedures of establishing a pledge on the deposit of this case. Nonparty 1 was able to withdraw the deposit of this case due to Nonparty 4, 5, 6, 7, 12, 12, 12, 13, and 2-1 through 8 of the evidence Nos. 2, taking full account of the whole purport of the pleadings, Nonparty 1 was able to withdraw the deposit of this case. Nonparty 2 did not have the above authority to withdraw the deposit of this case under the premise that Nonparty 2 did not actively participate in the process of withdrawing the deposit of this case, by taking into account the following facts: (a) Nonparty 1 was able to receive the passbook from the Defendant or receiving the deposit withdrawal from the Defendant; and (b) Nonparty 2 did not have the aforementioned authority to do so on the premise that the Defendant did not actively participate in the deposit of this case.

(3) Whether a expressive representation is established

In this case, there is no evidence to prove that there was the basic power of attorney as to the plaintiff's execution of funds, and as seen earlier, the defendant was well aware that at the time of withdrawal of the deposit of this case, the defendant was not authorized to withdraw the deposit to the non-party 1. Thus, the defendant's assertion of the expression agency of this case is without merit.

(4) Whether performance is made to quasi-Possessors of the claim

In order to be effective as repayment to quasi-Possessors of the claim, the person performing the obligation must be bona fide and without fault (see Article 470 of the Civil Act). According to the above facts of recognition, Nonparty 2, who worked as the vice head of the Defendant ○○○ Branch, was able to withdraw the deposit of this case by Non-Party 1 because Non-Party 1 did not follow the pledge procedure on the deposit of this case, even though he was aware that he did not have the right to withdraw the deposit of this case. Thus, it cannot be viewed that the Defendant did not have the right to withdraw the deposit of this case with respect to the withdrawal of the deposit of this case. Accordingly, this part of the Defendant’s assertion is without merit.

(5) Whether performance has been made to a person without authority pursuant to Article 472 of the Civil Act

(A) Payment to the criminal defendant for fraud, civil liability-based occupant

As seen earlier, before withdrawing KRW 4 billion from the account on November 24, 2008 and (ii) account, Nonparty 1 forged the Plaintiff’s application for withdrawal from the Plaintiff’s instant MT account under the Plaintiff’s name and acquired KRW 6 billion in total, and acquired KRW 3,620,383,926 from the account on December 2, 2008 by the said method before withdrawing KRW 3,656,495,458 in total from the instant MT account. If Nonparty 1 pretended the deposit owner and obtained the deposit by deceiving it, it is reasonable to deem that the Defendant is a criminal victim (see Supreme Court Decision 72Do1946, Nov. 14, 197, etc.).

However, comprehensively taking account of the overall purport of the arguments in the statements Nos. 4, 14, 6, 14-1 through 4, 14-1 through 15-1, 15-6 of Eul, and the whole purport of the pleadings, it is reasonable to view that the defendant paid the deposit to non-party 1, etc. with good faith and negligence as to whether he had the right to withdraw the deposit, by submitting an application for withdrawal with the Plaintiff’s seal affixed by Non-party 1, who is a subordinate employee of Non-party 1 directly or under the direction of Non-party 2, without his involvement, to apply for withdrawal of the deposit, and by confirming that the Defendant’s employee corresponds with the seal impression indicated in the application for withdrawal, and after confirming that the password was consistent.

Therefore, although the withdrawal of the above deposit is a criminal act against the defendant, even if the victim is the defendant, it is valid as a repayment to the quasi-Possessor of the claim, and thus, the defendant is deemed to be effective as a repayment to the plaintiff, and the defendant is exempted from the civil liability against the plaintiff. Accordingly, it is reasonable to view that the plaintiff suffers loss caused by the loss of the right to claim the return of the deposit against the money withdrawn from the MT account of this case, and the non-party 1 bears the liability to compensate

(B) Deposit into the instant MT Account and acquisition of the Plaintiff’s profit

However, as seen earlier, Nonparty 1 withdrawn the instant deposit in order to conceal his criminal act, such as withdrawal from the instant MT Account, and deposited the instant deposit in the instant MT Account on the date of each withdrawal of each party. The Defendant’s payment of the instant deposit to Nonparty 1 is valid as repayment to quasi-Possessor of the claim and is exempted from the civil liability with respect to the instant MT Account. As such, Nonparty 1’s withdrawal of the instant deposit and deposit in the instant MT Account cannot be deemed to have discharged the Defendant’s liability for damages, and it is reasonable to deem that Nonparty 1 has discharged the Defendant’s liability for damages by taking into account prior to Nonparty 1’s payment to the Plaintiff. Accordingly, the Plaintiff obtained the benefit of acquiring the claim for return of the deposit from the Defendant.

(C) The meaning of the obligee’s interest under Article 472 of the Civil Code

Article 472 of the Civil Act requires that an obligee shall receive benefit from the repayment to a person who is not authorized to receive payment. It includes not only cases where a person who is not authorized to receive payment delivers to a creditor the receipt of payment from an obligor, but also where there is a causal relationship between the recipient’s receipt of payment and the creditor’s benefit, and also where it is appropriated for the repayment of obligation to a receiver or a third party

As seen earlier, Nonparty 1 prepared an application for withdrawal and deposit application with the purport of withdrawing money from the instant deposit account to the Defendant’s employee, and submitted it to the Defendant to withdraw money from the instant deposit account, and deposited it into the instant MT account. According to this, Nonparty 1 was deemed to have delivered the instant deposit to the Plaintiff, the obligee, who is the obligor of the instant deposit contract, and Nonparty 1 withdrawn the instant deposit in order to conceal the Defendant’s criminal act with respect to the instant MT account and deposited it into the instant MT account to obtain profits from acquiring the Plaintiff’s new claim for return of deposit to the Defendant, and therefore, it is reasonable to deem that there exists causation between Nonparty 1’s receipt of the instant deposit from the Defendant and the Plaintiff’s receipt of the instant deposit from the Defendant by depositing it into the instant MT account.

Meanwhile, Article 472 of the Civil Act applies only to the case where the provision of the benefits received from the obligor by a non-authorized person is unjust enrichment. Even if Nonparty 1 is liable for damages to the Plaintiff by withdrawing the deposit from the instant MT account, then withdrawing the deposit, and then making the deposit again into the instant MT account does not constitute unjust enrichment on the ground that it constitutes the repayment of the damages owed to Nonparty 1, and thus, it does not constitute unjust enrichment. However, as seen earlier, Article 472 of the Civil Act does not apply to the case where the recipient appropriated the payment of the damages received by himself or a third party as the repayment of the damages owed to the Plaintiff. Thus, the Plaintiff’s above assertion is without merit without further review.

(D) Sub-determination

Therefore, although Nonparty 1 was a person who is not authorized to receive the deposit of this case with respect to the deposit claim of this case, he withdrawn the deposit of this case, and deposited it into the MF account of this case, and the plaintiff, the creditor, received the benefit of acquiring a new claim to return the deposit of this case against the defendant. Thus, the withdrawal of the deposit of this case against Nonparty 1 is effective as repayment of the deposit claim of this case. As seen earlier, Nonparty 1 withdrawn the entire deposit of this case and deposited it into the MF account of this case. Accordingly, it is reasonable to view that all of the deposit claims of this case were extinguished by a valid repayment (this case's deposit claim of this case as long as it is deemed that the deposit claim of this case was extinguished, no decision is made as to the preliminary set-off defense).

4. Determination as to an application for the return of provisional payments

According to the statement in Eul evidence No. 22, the plaintiff can recognize the fact that he/she received 10,317,895,445 won from the defendant on August 16, 201 based on the declaration of provisional execution of the judgment of the court of first instance on August 16, 201, with the amount of 10,317,895,445 won as the amount of 10,317,895,45 won as the judgment of the court of first instance was revoked at the court of first instance and thus the declaration of provisional execution of the court of first instance is invalidated. As such, the plaintiff is obligated to pay to the defendant 10,317,895,45 won as well as damages for delay calculated at the rate of 20% per annum under the Civil Act from August 16, 2011 to January 25, 2013, which is the date the provisional payment was received.

5. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is unfair as it is so unfair, and the plaintiff's claim is dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Judges Kim Yong-open (Presiding Judge)