In cases where the scope of damages to be paid varies depending on the fault ratio of the victim of the joint tortfeasor, the extent to which the liability of the other joint tortfeasor is extinguished by one of the joint tortfeasor to pay part of the total damages.

Articles 393, 413, 760, and 763 of the Civil Act

[Plaintiff-Appellant] Plaintiff 1 et al. (Law Firm Gyeong, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellant)

Plaintiff (Law Firm Barun Law LLC et al., Counsel for the plaintiff-appellant)

National Bank of Korea (Attorney Park Jong-sung et al., Counsel for the defendant-appellant)

Seoul Central District Court Decision 2015Na15671 Decided May 27, 2016

The judgment below is reversed, and the case is remanded to the Seoul Central District Court.

The grounds of appeal are examined.

1. As to the grounds of appeal Nos. 1 and 2

A. The reasoning of the lower judgment reveals the following facts.

① On January 11, 2013, Nonparty 1, a total liability for forgery of a check, obtained the delivery of a large franchise check (hereinafter “instant blank check”) that was kept in custody in the bank’s depository, by including Nonparty 2, an employee of the Han River branch of the Defendant Bank.

② Nonparty 1 introduced the Plaintiff, the bondholder, in order to forge the so-called “dunes round check” in the same form as the authenticity of the check using the blank check in this case, and agreed on June 11, 2013, through Nonparty 3, the co-offender, to provide the Plaintiff with a copy of the cashier’s checks, a copy of the cashier’s checks in this case, and a copy of the passbook in this case for three days, and to pay the Plaintiff KRW 72 million in return therefor.

③ On June 11, 2013, the Plaintiff issued a cashier’s check (hereinafter “instant cashier’s check”) at the branch of Defendant Bank’s Dong branch of the same bank, and issued a copy of the instant cashier’s check and a copy of the check check to Nonparty 3 on the same day, and Nonparty 3 posted it to Nonparty 1. However, the instant cashier’s check copy was sent back to Nonparty 1. However, the instant cashier’s check copy was printed back to four pages after the instant cashier’s check number, but the entire check number was indicated in the passbook.

④ Nonparty 1: (a) delivered the copy of the above check, a copy of the passbook, and the blank check in this case to Nonparty 4, who is another co-offender; (b) forged the check number of the instant cashier’s check affixed on the copy of the passbook; and (c) forged the check to Nonparty 1, stating “10,000,000” on the blank check in the blank column (hereinafter “the instant blank check”).

⑤ On June 12, 2013, Nonparty 3 presented to Nonparty 5, an employee of the Defendant bank, a payment proposal for the instant forged check at the Defendant’s sperm branch, according to Nonparty 1’s instruction, and received KRW 10 billion from the Defendant to the account in the name of ○○○ Human Investment.

④ On June 14, 2013, the Plaintiff presented the instant cashier’s checks to the Defendant bank’s original effect, but the Defendant bank rejected payment on the ground that the same check was already presented to the Defendant bank sperm branch.

B. Based on the aforementioned factual basis, the lower court predicted that the instant check forgery accident may occur through the transaction of a copy of the check and a copy of the passbook, and determined that the Plaintiff was liable for negligence by aiding and abetting and aiding and abetting the crime of larceny by Nonparty 1, etc. by failing to take such measures, even though it could have avoided the instant check forgery by taking measures such as suspending payment after issuing a copy of the check, etc.

C. As to the ground of appeal No. 1, the Plaintiff did not exhaust all necessary deliberations or found the facts in violation of the rules of evidence, although the Plaintiff did not deliver a copy of the passbook with the check number on the part of Nonparty 1.

However, even if examining the reasoning of the judgment below in light of the records, the above judgment below is just, and contrary to what is alleged in the grounds of appeal, the court below did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules,

D. The argument in the ground of appeal No. 2 is the purport of disputing the judgment below that deemed that the Plaintiff is liable for negligence aiding and abetting the commission of the crime of larceny, such as Nonparty 1. However, in light of the relevant legal principles and records, the lower court’s recognition of the Plaintiff’s joint tort liability is justifiable, and contrary to what is alleged in the ground of appeal, it is not recognized that the lower court erred by misapprehending the legal doctrine

2. As to the third ground for appeal

In a case where a joint tortfeasor is jointly and severally liable for damages to other persons, if the scope of damages to be compensated varies depending on who has committed the tort depending on the degree of fault against the victim, if the scope of damages to be compensated varies depending on who has paid the total amount of damages. In this case, when a tortfeasor, who is less liable for damages, partly repaid the total amount of damages, the amount of the tort’s obligation equivalent to the total amount of the total amount of the damages to be reimbursed, however, if a person who is less liable for damages partly discharged the total amount of damages, the obligation of a person who is less liable for damages should be deemed to be extinguished not only by the obligation equivalent to the total amount of the payment, but also by the portion corresponding to the ratio of fault of the person who is smaller liable for damages (see Supreme Court Decision 94Da5731, Mar

According to the reasoning of the judgment below, since the Plaintiff committed a joint tort against the Defendant with Nonparty 1 and others, the court below presumed that the Defendant is liable for damages of KRW 10 billion, the check amount suffered by the Defendant, and held that the Plaintiff is liable for payment of KRW 2 billion and damages incurred therefrom by limiting the Plaintiff’s liability to 20%. Therefore, if the Defendant partly repaid the amount of damages of KRW 10 billion, the amount equivalent to the Plaintiff’s fault ratio out of the amount of payment shall be extinguished.

However, according to the records, the Plaintiff’s legal representative sought an order from the first instance court to March 31, 2014 on whether some of the damages suffered by the Defendant were recovered from the amount of damage, and the Defendant’s legal representative stated that, from the preparatory document dated June 16, 2014, the amount recovered by the Defendant was KRW 1.63 billion from the Defendant’s criminal charge of forging the check, etc. to the time at which the check was counterfeited.

If such circumstances are the same, even if the Plaintiff did not explicitly state that part of the liability for damages against the Defendant was extinguished, the lower court should have determined the scope of the liability for damages owed by the Plaintiff against the Defendant in accordance with the legal doctrine as seen earlier, after having deliberated by exercising the right of explanation as to whether the Defendants, such as Nonparty 1, the joint tortfeasor, repaid the Defendant or recovered the amount of damages collected by the Defendant

Nevertheless, the lower court, without sufficiently examining the above points, immediately recognized that the Plaintiff’s damage liability against the Defendant was as indicated in its reasoning. In so doing, the lower court erred by misapprehending the legal doctrine on the extinguishment of the damage liability and the assessment of the amount of damages, and failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal on this point

3. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kwon Soon-il (Presiding Justice)