Effect of the employer's failure to give notice under the Guarantee of Secrecy Act

Even if the employer did not notify the fidelity guarantor of the fact that the employee's duties and forest land have been changed, the fidelity guarantor's responsibility is not exempted unless there are special circumstances to exercise termination right, but it is only a reason to consider the amount of compensation.

Articles 4, 5, and 6 of the Fidelity Guarantee Act

Supreme Court Decision 16Da1820 Delivered on November 19, 1968

Korea Life Insurance Corporation

Defendant

Seoul Central District Court (67Da5922) in the first instance trial (Supreme Court Decision 67Da5922)

The part against the defendant in the original judgment shall be modified as follows:

The defendant shall pay to the plaintiff the amount of KRW 200,00 and the amount at the rate of five percent per annum from April 1, 1967 to the full payment.

The plaintiff's remaining claims are dismissed.

The total expenses of a lawsuit shall be four minutes, and three of them shall be borne by the plaintiff and borne by the other defendant.

The defendant shall pay to the plaintiff the amount of KRW 855,798 and the amount at the rate of five percent per annum from April 1, 1967 to the full payment.

The judgment that the lawsuit costs shall be borne by the defendant and provisional execution declaration

The part against the defendant in the original judgment shall be revoked.

The plaintiff's claim is dismissed.

Litigation costs shall be assessed against the plaintiff at all of the first and second instances.

1. Facts that no dispute exists;

In employing Nonparty 1 as an employee on November 19, 1962, the defendant concluded a contract for the guarantee of identity with the plaintiff on the same day for five years from the above day. When the plaintiff directly or indirectly inflicted damage on the plaintiff due to the non-party's intention or negligence in the course of performing his duties during that period, the defendant agreed to compensate for the entire damages and notified the plaintiff that the plaintiff would compensate for the damages suffered by the non-party's tort on March 25, 1967. There is no dispute between the parties.

2. Responsibility for fidelity guarantee and the scope of compensation therefor;

A) Illegal act of the surety

Comprehensively taking account of the statements in Gap evidence Nos. 1 and 4, the testimony of the court below witness Nos. 2 and 3 as well as the whole purport of the parties' arguments, which are not disputed in the establishment, the non-party Nos. 1 was employed for the purpose of attracting insurance for the third group of the Army at around March 1966, while joining the plaintiff company and working as an ordinary member at the general affairs department, and was transferred from January 1, 1966 to the office of the plaintiff company as an ordinary member at the government branch office, and was in charge of the employee supervision, receipt of documents, management of the branch office property, receipt and custody of insurance money, receipt of insurance money, transfer of money to the office of the third group of the Army at the expense of attracting insurance, but the above third group group leader was used for the purpose of attracting insurance due to personnel movement. Thus, since the above third group leader was unable to attract insurance, from October 196 to November 1, 196, it cannot reverse the above facts recognized otherwise.

Thus, the defendant is responsible for compensating for damages within the scope of damage of the above recognition as a fidelity guarantor.

B) Judgment on the defendant's defense

(1) The defendant's attorney stated in the fidelity Guarantee letter that "..........., or negligence or negligence during the above period, and when there is damage........... of the above period, the defendant's attorney will make the full sale....." This result in the defendant's liability to compensate for damage, which results in the defendant's attorney-appellant

According to the statement of the fidelity Guarantee (Evidence A) in which the defendant is the guarantor, it can be known that there is a statement in the purport of the defendant's assertion, but the above defense is groundless since it is a contract whose purpose is to guarantee the employee's damage, which is separate from the obligation to the employee who is the guarantor, and it is put in consideration of all the circumstances under Article 6 of the Fidelity Guarantee Act in determining independent obligation separately from the obligation to the employee who is the guarantor.

(2) On January 1, 1966, the defendant's legal representative was first employed as a ordinary member, and was transferred to the vice governor of the plaintiff's legislative representative on the part of January 1, 196, and was in charge of handling important affairs such as insurance money, etc. In such a case, the plaintiff did not notify the defendant despite the notification obligation under Article 4 of the Guarantee of Personal Identity Act, and caused the defendant to lose the opportunity to terminate the contract under Article 5 of the above Act, and thus, the defendant's liability should be exempted.

However, since the non-party 1 worked as ordinary members in the general affairs department while becoming a member of the plaintiff company from January 1, 1966, the fact that the non-party 1 was transferred to the deputy governor of the plaintiff company as employee supervision, receipt of documents, management of the branch's property, receipt and custody of insurance money, transfer of money to the head office, etc. should be deemed to have increased the responsibility of the guarantor because the duties and land of the person under consideration are changed. Thus, the fact that the plaintiff did not notify the defendant of the above non-party's duties and land change is not a dispute between the parties. Thus, if the responsibility of the guarantor is increased or it is difficult to supervise the defendant by changing the duties and land of the person under consideration as above, it is difficult for the defendant to be notified without delay and the fidelity guarantor who received such notification is entitled to cancel the contract. According to the testimony of the non-party 2, the non-party 1, the guarantor of the court below, and the defendant, even if the non-party 1 and the defendant were aware of the above fact that the non-party 1 were not aware of his duty.

(3) The defendant's attorney asserted that since there is a considerable amount of income as the chief of the general affairs of the non-party 4 corporation at present, the defendant's attorney is entitled to pay damages to the above person.

However, the guarantor who is separately responsible for the user's liability of the guarantor, as the above non-party has a considerable financial ability and is now capable of selling the damage, cannot oppose the employer as the highest defense. Therefore, the above defense is groundless.

C) The amount of damages acknowledged by the party members

(1) On May 31, 1967, the Plaintiff’s attorney asserted that the Defendant promised to compensate for the total amount of damages if Nonparty 1 did not display the above embezzlement funds. However, Nonparty 2’s testimony, which is consistent with the lower court’s witness, cannot be accepted on the ground that there was no other evidence to acknowledge it in light of Nonparty 3’s testimony of the lower court witness.

(2) In full view of the statements in Gap evidence Nos. 5 (accident notification) and 6 (asset protocol) without dispute over the establishment, the plaintiff was unable to discover the accident immediately even though the non-party 1 embezzled 85,798 won from October 1, 1966 to November 1, 196, after taking into account the following facts: the plaintiff neglected to notify the defendant of his duties and change of land; the plaintiff was notified of the sales of the amount equivalent to the tort committed by the above non-party on March 25, 1967 after the accident; the defendant, as well as the above non-party and the above non-party who became a witness of the court below, provided a personal guarantee at the time of joining the plaintiff company, and the defendant was 5 million won in real estate, 45 million won in real estate, 3 million won in real estate, and 96 million won in total, and the amount equivalent to the plaintiff's share of the above property and the amount equivalent to 9 million won in real estate.

3. Conclusion

Therefore, the defendant is obligated to pay to the plaintiff the amount of KRW 200,000 of the above recognition and the amount of damages for delay in civil law in accordance with the rate of five percent per annum from April 1, 1967 to the full payment as claimed by the plaintiff. Thus, the plaintiff's main claim is justified only within the limit of the above recognition amount, and it is reasonable to accept and dismiss the remainder. Thus, the defendant's appeal against the original judgment with different conclusion is justified only in part, and it is so decided as per Disposition by the application of Articles 385, 386, 96, and 92 of the Civil Procedure Act.

Judge Syle (Presiding Judge)