Jinhee (Attorney Jin-hee et al., Counsel for the defendant-appellant)

Busan Bank and 1 other

September 8, 2004

Busan District Court Decision 2002Gahap19240 Delivered on August 21, 2003

1. Upon a claim for a change in exchange at the trial, Defendant 2 shall pay to the Plaintiff the amount of KRW 20 million, Defendant Busan Bank shall pay to Defendant 2 and each of the above amounts of KRW 120 million from October 10, 2002 to October 6, 2004, 5% per annum from October 2004, and 20% per annum from the next day to the full payment date.

2. The plaintiff's remaining claims against the defendants are dismissed.

3. The total cost of the lawsuit shall be two minutes, which shall be borne by the plaintiff, and the remaining one by the defendants.

4. Paragraph 1 can be provisionally executed.

The judgment of the first instance court is revoked. The Defendants paid 40 million won to each of the Defendants at the rate of 20% per annum from the day following the date of the final delivery of the copy of the complaint of this case to the day of full payment (the Plaintiff asserted that the original acquired claim was the damage claim arising from the tort on the ground of embezzlement by Defendant 2, but the court changed the lawsuit in exchange for the grounds that the original acquired claim was the damage claim arising from the tort on the ground of Defendant 2’s fraud).

1. Facts of recognition;

The following facts are not disputed between the parties, or there is no dispute between the parties, and evidence Nos. 1, 2, 3, 5-1, 2, 6-1, 2, 3, 7-1, 2, 8, 9, 4, 5, 7, 7 through 13, 14-1, 2, 5, 16-2, 15, 18-1, 2, 2, 19-2, 2, 24, 25, 26-1, 24, 26-2, 24, 25, and 7-1, 2, 8, 9, 4, 7, 7 through 13, 14-1, 15, and 19-2, and 23-1, 23-2, and 3-1, 24, 25, 26-26 of the first instance trial witness, 201.

A. On August 12, 2001, 2000, 1850 billion won was purchased from the Plaintiff and Masung-dong, Ulsan-dong, 678 site and its ground buildings (hereinafter the above site and buildings combined with the above site and buildings) in order to operate the extreme Lestop, and entered into a sales contract with the Plaintiff to pay part of the price for the instant real estate as collateral.

B. Although new walk had been discovered of a number of banks to obtain a loan, the defendant 2 was introduced, which was the head of the loan branch of the new walk branch of the defendant Busan Bank (hereinafter the defendant bank), and asked the defendant bank to obtain a loan from the defendant bank as collateral. On September 17, 2001, the defendant 2 had completed the registration of ownership transfer based on the above sales contract on the real estate, and completed the registration of ownership transfer based on the above sales contract on September 17, 2001, and completed the registration of ownership transfer as to the real estate in the future of the defendant bank, the maximum debt amount of 2.2 billion won, the debtor, the debtor, and the collateral security bank near the defendant bank.

C. On September 18, 2001, at the above New Changdong Branch on September 18, 2001, the following day, the Defendant bank entered into a credit transaction agreement with the effect that the interest on the loan will be paid 1.8 billion won on the loan, 1.8 billion won on September 18, 201, and 1.8 billion won on the loan from the date of the loan (hereinafter “the loan in this case”).

D. However, even if Defendant 2 received the money as a prior interest on the instant loan from new bank and as a collateral security, he did not wish to appropriate it to repay the interest on the instant loan, or deposit it with the Defendant bank as collateral on the instant loan. However, around early September 2001, Defendant 2 loaned the amount of KRW 1.8 billion to the new bank, which was prior to the instant loan, exceeding the collateral ability of the instant real estate. Thus, it is difficult for Defendant 2 to obtain insufficient collateral in the event of delinquency in interest on the loan after the loan, and deposit KRW 200 million out of the loan with the prior interest on the loan and the back interest on the loan. Accordingly, Defendant 2 was delivered KRW 200 million out of the loan at the new Dong branch on the date of the instant loan to Defendant 2 by receiving instructions from Defendant 2 at the same time as the loan was given by Defendant 2.

E. Afterwards, on October 2001, Defendant 2 asked Defendant 2 to pay interest on a loan from Defendant Bank, which was requested by Defendant 2 to pay interest, even though she received 200 million won as a prior interest. The above 200 million won was deposited as a collateral for the loan, and Defendant 2’s horse, which made it difficult to pay interest on a deposit of the loan as a collateral, and Defendant 2’s horse, Defendant 2, while Defendant 2 paid interest on a two-time basis, she was unable to pay interest thereafter. However, around February 26, 2002, Defendant 2 lost the benefit due to the loan obligation of this case.

F. In addition, Defendant 2 did not require Defendant 2 to make a receipt, etc. for the above KRW 200 million, and did not directly seek advice from Defendant bank after hearing advice from the surrounding persons about the prior interest or side security. On February 20, 2002, Defendant 2 was aware of the payment of KRW 200 million to this head of the above New Changdong Branch at the time when he was registered as a bad credit holder with respect to the loans of this case.

G. Around March 2002, the Defendant Bank applied for a voluntary auction on the above site based on the right to collateral security as a claim claim for a loan of KRW 1.8 billion to a new deposit and overdue interest thereon. Accordingly, on July 2, 2002, Ulsan District Court Decision 2002Hu6052 decided July 2, 2002, the above site was awarded a successful bid of KRW 1.762 billion in the successful bid price.

H. Meanwhile, Defendant 2 was indicted on the charge of fraud, etc. that he received KRW 200,000 for the loan of this case from us at the time of the loan of this case as the Busan District Court's Dong Branch 2002, 42, 48 (Joint) and 52 (Joint) and acquired it as a prior interest on the loan of this case from us at the time of the loan of this case. Defendant 2 was sentenced to imprisonment with prison labor for 7 years at the first instance on September 16, 202, and the appeal by Defendant 2 was dismissed, and the above punishment became final and conclusive.

I. On July 16, 2002, in lieu of the payment of the purchase and sale balance of the instant real estate, new walk transferred to the Plaintiff a total of KRW 200 million among the refund claim against the Plaintiff, and the damages claim against the Defendants of new walk-walk-walk-walk-walk-walk-walk-walk-walk-walk-walg-walk-walk-walk-walk-walk-walk-wal

2. Claim against the defendant 2

A. According to the above facts of recognition, Defendant 2 is liable to compensate for the amount equivalent to KRW 200,000,000,000,000,000,000,00,000,000,000,000,000,000,000,00

B. In addition to the cost of KRW 200 million acquired by Defendant 2, the Plaintiff claimed for the payment of KRW 20 million, which the appraisal was lower than KRW 2.577 billion, as the appraisal was awarded in the above voluntary auction procedure, and the difference between KRW 8150 million and KRW 1.762 million after the purchase of the instant real property, to remove the said building and to construct a new building to be used as Lestop, which is to be used as Estop, to Jan General Construction Co., Ltd. after the purchase of the instant real property, but the penalty of KRW 3.3 billion, which was to be borne by the Plaintiff due to his failure to perform construction works as a successful bid for the said site, shall also be paid KRW 20 million due to Defendant 2’s tort. However, the said damage shall not be deemed to be a damage in proximate causal relation with Defendant 2’s tort. Therefore, the Plaintiff’s above assertion is without merit.

3. Demanding against the defendant bank;

A. Claims against the Plaintiff’s Defendant Bank

(1) According to the above facts, Defendant 2, the head of the loan team at the new branch of the Defendant bank, was paid KRW 200 million out of the loan from Defendant 2 under the name of the preferred interest on the loan of this case and the side security. In general loan, it cannot be deemed that the loan of this case was within Defendant 2’s original scope of damages in light of the practice of the bank including the Defendant bank, where it received money from the preferred interest on the loan of this case from Defendant 2, but the above amount of KRW 200 million was made in the course of the loan of this case at Defendant 2’s request, which is the head of the loan team at the new branch of the above new branch, under the name of collateral security. Since the above amount of KRW 200 million was issued to the Nonparty at the above new branch of the new branch of the Defendant bank, it is objectively related to the loan of this case or deemed to fall under the act within the scope of the loan of this case. Thus, Defendant 2, as Defendant 2, unless there is any special obligation to compensate the Plaintiff 200 million.

The Plaintiff also sought payment of KRW 200 million to the Defendant Bank. However, such damages cannot be deemed as losses in proximate causal relation with Defendant 2’s tort, and therefore, are without merit.

(2) Determination on the assertion by Defendant Bank

(A) Bad faith or gross negligence as to whether it does not constitute an act of performing affairs

In light of the fact that the Defendant bank did not have a practice of deducting interest from a general loan under the Bank Loan Business Act, and that 200 million won is interest for about one year and four months in light of the interest agreement of 8% per annum at the time of the instant loan, it is not normal in terms of bank loan transaction practices. The Defendant bank asserts that the Defendant bank was not aware of the Defendant bank’s business or liability for paying 200 million won due to the Defendant bank’s negligence because it did not mention that the Defendant bank did not pay 200 million won in advance interest and back interest without mentioning that the Defendant bank had been registered as the bad credit holder due to the default of interest on February 26, 202. In light of the fact that it stated that the Defendant bank was not aware of the Defendant bank’s business or liability for paying 200 million won due to the Defendant bank’s negligence, such as Defendant 2’s prior interest and the Defendant bank was not related to the Defendant bank’s business.

In light of the bank transaction practices, the payment of 200 million won to Defendant 2 as a prior interest and back security was abnormal aspect in light of the fact that the payment of 200 million won to Defendant 2 was made, and the fact that Defendant 2 believed only the end of Defendant 2 that the 200 million won was deposited as a collateral and cannot be appropriated for the payment of interest, despite Defendant 2’s demand for the interest, and paid part of the interest without mentioning the above 200 million won to Defendant bank in spite of Defendant 2’s demand for the interest. However, Defendant 2 requested Defendant 2 to Defendant 2 to pay the interest in advance interest and back interest because the loan in this case was made in excess of the collateral limit of the real estate in this case, and it is difficult to view that Defendant 2’s act, which received 200 million won as a prior interest on the loan in this case and back mortgage, did not constitute an act of performing the affairs of Defendant bank, or did not know that there was any gross negligence, and there is no reason to deem otherwise.

(B) False indication of conspiracys

In real estate transaction, the Defendant bank received an uncertain damage claim in lieu of the payment of the purchase price. As such, the Defendant bank claims that the transfer contract between the Plaintiff and the Plaintiff is invalid as a false conspiracy. However, the above circumstance alone does not constitute an act based on a false conspiracy, and there is no other evidence to acknowledge it. Thus, the Defendant bank’s assertion is without merit.

(C) The assertion of fraudulent act

The defendant bank asserted that the acquisition of the damage claim, which the plaintiff had against the defendant bank, in lieu of the payment of the remaining purchase and sale price, is to prevent the exercise of the claim for the loan against the new bank, and thus constitutes a fraudulent act. However, the revocation of the fraudulent act cannot be asserted solely by means of attack and defense against the lawsuit. Thus, the above claim against the defendant bank is without merit.

(D) Claim of violation of the good faith principle

The defendant bank asserts that it is against the principle of trust and good faith to take over an uncertain damage claim against the defendant bank even though the plaintiff knew that new and old loans are liable for the debt of this case to the defendant bank, and seek the payment of the debt to the defendant bank. However, the above circumstance alone is difficult to view the plaintiff's claim for the debt acquisition and its claim for the debt acquisition as contrary to the principle of trust and good faith.

B. Limitation of liability for damages

However, in the ordinary loan transaction practices of the bank, the new loan used in the loan process of this case was agreed to pay monthly interest on the loan at the time of this case, and the bank did not deposit part of the loan under the name of prior interest or back interest, and without going through any other verification procedures, paid KRW 200 million, which is the interest amount equivalent to the loan of this case for about one year and four months under the name of prior interest and back interest, under the name of collateral security. Such negligence in the new loan process of this case was caused by the damage of this case. Thus, it is reasonable to take this into account in determining the amount of damages to be compensated by the defendant bank, and the ratio of negligence should be 40% (60% of the liability ratio of the defendant bank).

C. The defendant bank's allegation of set-off

Although the defendant bank asserts that the claim for the principal and interest of loan of this case and the claim for damages against the defendant bank for the new bank for the new bank for an intentional unlawful act is offset against the damages claim, the offset against the claim for the passive act is prohibited under Article 496 of the Civil Code, and even if the employee did not have an employer's intention in relation to the employer's liability in the case of an intentional unlawful act, it is necessary to enforce the employer's actual repayment of the damages claim for the unlawful act in the course of his duties and can prevent the occurrence of the tort. Thus, even if the employer did not have an employee's intention in relation to an intentional unlawful act, the employer cannot offset the damages claim for the tort in accordance with the employee's intentional unlawful act against the passive claim. Thus, in this case where the defendant bank bears the employer's liability for the act of taking the 200 million won out of the new bank's loan intentionally, the above offset against the defendant bank's assertion cannot be justified.

4. Conclusion

Therefore, Defendant 2 is obligated to pay to the Plaintiff the amount of KRW 120 million among the above amount of KRW 200 million by Defendant 2 and each of the above amount of KRW 200 million by Defendant 2 (200 million x 60%) and each of the above amounts to the Defendants from October 10 to October 6, 2002, which is the day following the final delivery of the copy of the complaint of this case against the Defendants, the date following the final delivery of the complaint of this case by the Defendants, to October 6, 2004, the date of the judgment of the court of first instance, and from the next day to the date of full payment, 5% per annum under the Civil Act and 20% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings. Accordingly, the Plaintiff’s claim against the Defendants exchanged in the court of first instance was accepted within the scope of each above recognition, and each of these claims is dismissed as the remainder is dismissed (the judgment of the court of first instance as to the Plaintiff’s claim for damages caused by embezzlement).

Judges Don Man (Presiding Judge) apply mutatis mutandis to the stay of the deceased