[1] The scope of damages suffered by a customer in a case where a securities company’s employee arbitrarily traded shares after the customer withdraws an all-inclusive contract for stock purchase and sale

[2] The deadline for filing an appeal and its reasons (=the deadline for filing an appeal)

[1] Property damage due to a tort refers to the difference between the property disadvantage caused by an illegal harmful act, i.e., the property condition that would have existed without the tort and the property condition difference after the tort became effective. Thus, in case where an employee of a securities company arbitrarily traded shares in spite of the customer’s withdrawal of a comprehensive discretionary sale agreement on shares, the difference between the balance of shares and deposits held at the time of the customer’s withdrawal of the discretionary sale and purchase of shares, i.e., the difference between the balance of shares and deposits held at the time of the customer’s withdrawal of the discretionary sale and purchase of shares, and the balance between the shares and deposits held at the time of the customer’s withdrawal

[2] Appellee may make an incidental appeal even after the right to appeal is extinguished, but the appeal shall be filed within the period for submitting the appellate brief and a statement of the reasons therefor shall be submitted.

[1] Articles 393, 750, and 763 of the Civil Act / [2] Articles 372, 395, and 397 of the Civil Procedure Act

[2] Supreme Court Decision 97Da38299 delivered on November 28, 1997 (Gong1998Sang, 93), Supreme Court Decision 98Da47542, 47559 delivered on July 9, 199 (Gong1999Ha, 1587), Supreme Court Decision 99Da50538 delivered on January 21, 2000 (Gong200Sang, 482)

Plaintiff 1 and one other (Attorney Choi Jung-sik, Counsel for the plaintiff-appellant)

Substitute Securities Co., Ltd and one other (Attorney Lee Dong-gu, Counsel for the plaintiff-appellant)

Busan High Court Decision 97Na9185 delivered on July 3, 1998

The part of the judgment of the court below against Plaintiff 2 regarding the claim for damages caused by tort is reversed, and that part of the case is remanded to Busan High Court. All of the appeals by Plaintiff 1 and appeals by Plaintiff 2 as to the remainder of the appeal by Plaintiff 2 are dismissed. All of the appeals by the Defendants are dismissed. The costs of appeal by Plaintiff 1 and the costs of appeal by the Defendants are assessed against each party.

1. The plaintiffs' grounds of appeal are examined.

A. As to the first ground for appeal

(1) According to the reasoning of the judgment below, Defendant 2, an employee of Defendant 2 Co., Ltd. (hereinafter referred to as “Defendant Co., Ltd.”) purchased shares on May 10, 1995 through the above 195, and entered into a comprehensive discretionary sale agreement with Plaintiff 2, who was in charge of the Plaintiffs’ purchase and sale of shares, and traded shares through each share sale account under the Plaintiffs’ name. However, the lower court acknowledged that the remaining shares were sold to Plaintiff 2 and purchased shares 1,490 shares on July 24, 1995 and the remaining shares were 1,284,280 won in the above shares and 90 shares. On the other hand, even if the remaining shares were purchased on August 1, 1995, the lower court acknowledged Plaintiff 1’s shares and 2,00 shares were 90 shares shares again purchased on the above account of Plaintiff 1’s 90 shares shares and 90 shares shares shares shares were sold to the Defendant, and then, the lower court did not inform the Plaintiffs 2 and 15 shares thereafter.

Furthermore, the court below held that Defendant 2 and its employer are jointly and severally liable for the damages suffered by the plaintiffs since they conducted the trade at will against the intent of the plaintiffs for the business performance of the defendant company by arbitrarily going against the intent of the plaintiffs, or continued the trade by short-term or short-term revolving, even though the plaintiffs had withdrawn the comprehensive discretionary trade agreement, and that the scope of compensation for damages is against the intent of the plaintiffs, namely, the trade between August 9, 1995 and October 30, 195 through the bank account of the plaintiff 2 and the trade between October 30, 1995 and July 28, 195 through the bank account of the plaintiff 2 and October 30, 1995, the court below ordered the compensation for damages based on the amount of the fees that the plaintiffs are liable to pay by the plaintiffs.

(2) However, the part that the lower court determined that the damages suffered by the Plaintiffs due to the above tort by Defendant 2 was reasonable in terms of commission and transaction tax is not acceptable. Since property damage caused by a false tort refers to the difference between the disadvantage of property caused by the illegal harmful act, that is, the disadvantage of the property that would have existed without the tort, that is, the difference between the property condition that would have existed without the tort and the property condition after the tort became effective, as recognized by the lower court, in this case, under the facts acknowledged by the lower court, the situation in which there was no voluntary sale, namely, the balance of stocks and deposits held at the time when the Plaintiffs withdraw the discretionary sale, and the subsequent difference between the balance of the stocks and deposits held at the time when the Plaintiffs knew of the above voluntary sale.

However, according to the facts established by the court below, in the case of plaintiff 1, the same issue as the shares remaining in the above plaintiff's account before the voluntary sale, despite the fact that there were several voluntary sales as above, and the same quantity of shares and the amount of deposits remains more than the amount of money, and damages caused by the price decline in the pertinent shares themselves cannot be considered in calculating the amount of damages, barring any special circumstances, and thus, it cannot be deemed that the above plaintiff suffered any property damage. Therefore, the above plaintiff's claim for damages should not be accepted. However, since the defendants did not appeal against the judgment below which partially accepted the above plaintiff's claim, it cannot be changed to the court below's disadvantage against the above plaintiff (the defendant's incidental appeal is unlawful as seen below). Thus, even if there were such errors, the plaintiff'

Therefore, the above illegality of the court below is deemed to have affected the judgment only on the part of plaintiff 2. Therefore, the ground of appeal on this part of the plaintiff 2, which contained the purport of pointing this out, is with merit, and the ground of appeal on this part of the ground of appeal by the plaintiff

B. Ground of appeal No. 3

The fact-finding or determination of the ratio of comparative negligence in a damage compensation case caused by tort falls under the exclusive jurisdiction of a fact-finding court unless it is deemed that it is considerably unreasonable in light of the principle of equity (see Supreme Court Decision 97Da38299, Nov. 28, 1997). Examining the reasoning of the judgment below in light of the records, the ratio of fault of the plaintiffs recognized by the court below shall be within the acceptable scope and shall not be unreasonable in light of the principle of equity. The plaintiffs' ground of appeal

C. Regarding ground of appeal No. 2

According to the judgment of the court below, the court below rejected the plaintiffs' assertion that the defendant 2 agreed to compensate for the actual damage suffered by the plaintiffs on the ground that there is a lack of evidence to prove that the plaintiffs agreed to compensate for such actual damage. Thus, the plaintiffs' assertion of misapprehension of the legal principles as to the validity of the contract for guaranteeing investment returns is about the judgment of the court below, which cannot affect the conclusion of the judgment, and the above assertion is without merit

2. The defendants' objections are examined ex officio.

Appellee may file an incidental appeal even after the right to appeal has been extinguished, but it is obvious that the Defendants filed an incidental appeal after 20 days from the date on which the notice of receipt of the record of appeal was served to the Plaintiffs. Thus, the Defendants’ incidental appeal is unlawful, and its defects cannot be corrected as it is not correct.

3. Therefore, the part of the judgment of the court below against Plaintiff 2 regarding the claim for damages on the ground of tort is reversed, and that part of the case is remanded to the court below for a new trial and determination. The appeal by Plaintiff 1 and the appeal by Plaintiff 2 as to the remaining part of the plaintiff 2 are all dismissed as it is without merit, and they are dismissed as to the defendants' supplementary appeal. The costs of appeal by the plaintiff 1 and the supplementary appeal by the defendants are assessed against each losing party. It is so decided as per Disposition by the assent of all participating

Justices Lee Han-gu (Presiding Justice)