[1] Whether the fact-finding and the determination of ratio are the exclusive authority of the fact-finding court (affirmative)

[2] Where an employee of a securities company purchases an order for the purchase of a customer with a specific price at a higher price than the price designated by the customer in handling the order for the purchase of the securities company, whether the customer is liable for damages on the ground of a violation of specific instructions, while recognizing the attribution of transaction effects (affirmative), and the method of calculating ordinary damages

[3] The scope of property damage suffered by a customer due to the voluntary trading of stocks by an employee of a securities company or the voluntary trading of stock price index futures and options

[1] The fact-finding or determination of the ratio of comparative negligence in a tort compensation case belongs to the exclusive authority of the fact-finding court unless it is deemed considerably unreasonable in light of the principle of equity.

[2] Where an employee of a securities company purchases an order for the purchase of a customer with a specific price at a higher price than the price designated by the customer, the customer can be held liable for damages caused by a violation of specific instructions even if the transaction effect reverts to the customer. In such a case, it is reasonable to calculate the ordinary damages according to the difference between the designated price and the actual contract price.

[3] Property damage caused by a voluntary sale of stocks shall be deemed as a loss in which the balance of the customer’s stocks and deposits prior to the voluntary sale and subsequent transaction in violation of the customer’s instructions. That is, the difference between the balance of the stocks and deposits held at the time when the customer files the issue with the knowledge of the aforementioned voluntary sale and purchase. The property damage caused by a voluntary sale of futures and options shall also be deemed as a loss inasmuch as the appraised value of the stock price index or options (the holding condition of an unregistered contract arising from the sale or purchase of futures or options) can be calculated based on the market price for each product.

[1] Articles 396, 750, and 763 of the Civil Act / [2] Articles 393, 750, and 763 of the Civil Act / [3] Articles 393, 750, and 763 of the Civil Act

[1] Supreme Court Decision 98Da50586 delivered on January 21, 2000 (Gong2000Sang, 470) Supreme Court Decision 2001Da62251, 62268 delivered on January 8, 2002 (Gong2002Sang, 452) Supreme Court Decision 2004Da26805 Delivered on January 14, 2005 (Gong2005Sang, 283) Supreme Court Decision 2005Da16713 Delivered on June 24, 2005 (Gong2005Ha, 1257) / [3] Supreme Court Decision 98Da39633 delivered on November 10, 200 (Gong201Sang, 601Sang, 203Da45239 delivered on June 24, 202)

Plaintiff

Defendant Co., Ltd. (Law Firm Spah, Attorneys Park Jong-chul et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2005Na5159 decided August 26, 2005

Of the part of the judgment below against the defendant, the part of the damage caused by the tort No. 1 in the original adjudication shall be reversed and remanded to the Seoul High Court.

1. Illegal acts caused by voluntary sale;

According to the reasoning of the judgment below and the records, the non-party, an employee of the defendant, was entrusted with the comprehensive discretionary sale of futures and options by the plaintiff, and thus, the non-party promises that "if 10% or more of losses are incurred, once the sale and purchase is suspended and then to enter into the plaintiff with respect to the subsequent transaction (see evidence No. 4, No. 181, May 11, 2003). The non-party, from around May 11, 2003 to KRW 1,00,013,517 of the deposit received from the plaintiff's account, during the total discretionary sale of futures and options, he may have known the fact that at least 10% of losses were incurred as a result of the balance assessment calculated on June 22, 2003, without notifying the plaintiff of the occurrence of losses at all, constitutes a tort (hereinafter "non-party 1 tort"). The judgment of the court below and the judgment below are justifiable, and contrary to the allegations in the grounds of appeal No. 1, there are no errors by misapprehending the rules of evidence.

2. Transactions conducted in violation of specific instructions;

Examining the reasoning of the judgment below in light of the records, the court below was just in finding facts as stated in its judgment after compiling the evidence adopted in its judgment, and it was also justified in finding that the plaintiff's purchase of put-in option 5,000 at the price of July 2, 2003 by the non-party constitutes a tort (hereinafter "second tort"), which is higher than 0.5 points that is the purchase price set by the plaintiff, in purchasing put-in option 5,000 at the price of put-in option of July 2, 2003. There was no error of incomplete deliberation, violation of the rules of evidence, or misapprehension of legal principles concerning

3. Whether the plaintiff's ratification is ratified

According to the records, although the plaintiff asked the defendant's transaction details by accessing the defendant's computer network from time to time after May 11, 2003, it seems that there was no fact that "the account evaluation status (the screen No. 6311, No. 21-1, No. 21-2)" could easily identify information on the amount of evaluation of the account (refer to the evidence No. 15). Thus, it is difficult to accept the plaintiff's assertion that the plaintiff knew the amount of evaluation of the account of this case through the Home Twit Trading system and confirmed all transactions of the above non-party by recognizing the continuous transactions of the above non-party. Ultimately, it is reasonable to reject the defendant's assertion of ratification by taking account of the evidence cited by the court below in the judgment, and there is no violation of the rules of evidence or misapprehension of legal principles as alleged in the ground of appeal No. 3.

4. Whether the ratio of comparative negligence is equivalent.

The fact-finding or determination of the ratio of comparative negligence in a tort compensation case is within the exclusive jurisdiction of the fact-finding court unless it is deemed that it is considerably unreasonable in light of the principle of equity (see, e.g., Supreme Court Decision 2001Da62251, 6268, Jan. 8, 2002). Examining the records in light of the above legal principles, it cannot be deemed that the ratio of comparative negligence due to the plaintiff's mistake, recognized by the court below, in relation to the scope of liability to compensate the plaintiff for damages caused by the tort No. 1 of this case, the ratio of comparative negligence due to the plaintiff's mistake, which the court below acknowledged in relation to the scope of liability to compensate the

5. Calculation of damages;

A. As to the second tort part

Where an employee of a securities company purchases an order for the purchase of a customer who specifically specified the price of a securities company at a higher price than the price designated by the customer, the customer can be held liable for damages caused by the violation of specific instructions even if the ownership of transaction effects is recognized. In such a case, it is reasonable to calculate the damages according to the difference between the designated price and the actual contract price. Therefore, the court below is just in finding the difference between the price calculated by the plaintiff for the purchase of the order and the price actually executed by the above non-party as damages, and there is no violation of rules of evidence or misapprehension of legal principles as to this part of the grounds of appeal No. 5.

B. As to part of the first tort

(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 which would have existed without the tort and the property condition after the tort became effective. Property damage caused by a voluntary sale of shares refers to the balance between the shares and deposits of the customer prior to the voluntary sale and the subsequent order of the customer, i.e., the difference between the balance of shares and deposits held at the time of the customer's complaint knowing the above fact of voluntary sale, i.e., the transaction in violation of the customer's order (see Supreme Court Decision 98Da3963, Nov. 10, 200), and property damage caused by the voluntary sale of shares and deposits shall also be deemed to be the loss (see Supreme Court Decision 98Da39633, Nov. 10, 200), so long as the appraised value of each commodity market can be calculated by the price of each commodity.

(2) In light of the records, even if there was a loss of 10% or more from the account of this case as of June 2, 2003 based on the closing price, the above non-party continued to engage in voluntary trade after June 3, 2003 without notifying the plaintiff. The plaintiff neglected to engage in voluntary trade and did not know that losses have increased continuously after that time, and the plaintiff was not at the time, and was aware of the fact that the above non-party's account was appraised on July 7, 2003. The plaintiff was aware of the fact of voluntary trade and the occurrence of losses after inquiring about the appraised value of the account of the above non-party on July 7, 2003. The plaintiff raised an objection against the above non-party by telephone around 13:58 on the same day (see Article 98 of the record). Thus, property damage due to the tort should be deemed as the difference between the appraised value and the appraised value of the plaintiff's account as of June 2, 2003.

(3) Nevertheless, the lower court calculated the amount of damages for the tort No. 1 on the ground that (i) profits and losses arising from options held under an unsettlement agreement prior to the commencement of the tort ( June 2, 2003) were liquidated or exercised during the period of subsequent tort on the grounds that they were profits and losses arising from lawful trade (an overall delegation) during the period of subsequent tort, except for the cases where such profits and losses were liquidated or exercised, and (ii) even after the termination of the tort ( July 7, 2003), profits and losses arising from the liquidation or exercise of the unsettlement agreement arising from the voluntary trade before the conclusion of the tort were included on the ground that they were profits and losses arising from the option trade during the period of the tort; and (iii) thus, the lower court did not err by misapprehending the legal doctrine on calculating the scope of damages for the tort, which affected the conclusion of the remaining judgment. The part of the grounds of appeal No. 5

6. Conclusion

Therefore, by accepting the defendant's appeal, the part against the defendant as to the damages of the first tort among the judgment below is reversed, and the case is remanded to the court below. It is so decided as per Disposition.

Justices Kim Hwang-sik (Presiding Justice)