[1] The meaning of offsetting negligence and the degree of negligence

[2] In a case where a bank holding a bill of lading claims damages against a carrier who delivered a cargo without redeeming the bill of lading, the case holding that the above bank erred by failing to take measures to recover the loan from the exporter in purchasing a bill of exchange and shipping documents issued under the acceptance limit (D/A) and the bill of exchange, even though there were special circumstances under which the exporter failed to take such measures, and by arbitrarily changing the underwriter of the bill of exchange to a third party who is not the original importer, which constitutes an exemption from the terms and conditions of export bill insurance, and thus, it constitutes a ground for offsetting negligence

[1] In determining the amount of damages in tort, comparative negligence is considered in light of the principle of fair and good faith. In applying the same, the scope of damages is set in consideration of all the circumstances such as the degree of intentional negligence of the perpetrator and the victim, the occurrence of the illegal act, and the expansion of damages. The negligence in offsetting the amount of damages against the strong negligence of the breach of duty by the tortfeasor in tort refers to the principle of trust and good faith and the weak negligence required for common life.

[2] In a case where a bank holding a bill of lading seeks damages against a carrier who delivered a cargo without redeeming the bill of lading, the case holding that the above bank erred by failing to take measures to recover the loan from the exporter in purchasing a bill of exchange and shipping documents issued under the acceptance limit (D/A) and the bill of exchange, even though there were special circumstances under which the exporter could have been negligent in taking such measures, and by arbitrarily changing the underwriter of the bill of exchange to a third party who is not the original importer, thereby making it impossible to receive the insurance money in violation of the terms and conditions of export bill insurance.

[1] Article 396 of the Civil Code / [2] Article 396 of the Civil Code

[1] Supreme Court Decision 91Da4249 delivered on February 14, 1992 (Gong1992, 1007) Supreme Court Decision 94Da61120 delivered on September 15, 1995 (Gong1995Ha, 3385), Supreme Court Decision 98Da31868 delivered on July 23, 199 (Gong199Ha, 1724)

Industrial Bank of Korea (Attorney Lee Jung-won, Counsel for defendant-appellant)

Cmerte Air Transport Co., Ltd. (Law Firm Pacific, Attorneys Gangnam-gu et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 98Na24213 delivered on May 25, 1999

All appeals are dismissed. The costs of appeal are assessed against each party.

1. As to the Defendant’s first ground of appeal

According to the reasoning of the judgment below, the court below determined that the defendant's assertion that the non-party 1 was not entitled to claim damages of this case since the non-party 1 received the bill of this case from the collection bank at the time when the non-party 1 received the bill of this case as the payer on December 19, 196 and delivered all shipping documents including the bill of this case from the collection bank, and the defendant possessed the bill of this case at the time of delivery of the cargo of this case. Thus, the non-party 1 did not have any title to claim damages of this case against the defendant's assertion that the non-party 1 received the shipping documents including the bill of this case from the Korea-U.S. bank, and if the non-party 1 was delivered the bill of this case, the non-party 2's testimony and the defendant's agent received the cargo of this case in exchange for the bill of this case, and therefore, the above bill of this case cannot be believed in light of the reasonable fact that the defendant possessed the bill of this case.

In light of the records, the above fact-finding and decision of the court below is correct and there is no error of law such as misconception of facts or incomplete deliberation due to violation of the rules of evidence as otherwise alleged in the ground of appeal. The defendant's ground of appeal on

2. Plaintiff’s ground of appeal and Defendant’s ground of appeal No. 2

Contributory negligence in tort is set in consideration of the victim's negligence in determining the amount of compensation in accordance with the principle of equity or good faith. In applying the same, the scope of compensation should be set in consideration of all the circumstances such as the tortfeasor and victim's intentional negligence, the occurrence of the illegal act, and the expansion of damages. The tortfeasor's negligence in the tort is against the strong fault of the breach of duty, and negligence in offsetting negligence refers to the principle of social norms, the principle of trust and good faith, and the principle of good faith required for common life (see, e.g., Supreme Court Decision 94Da6120, Sept. 15, 1995).

According to the reasoning of the judgment below, the court below held that in the transaction of bill of exchange (D/A transaction) of the same acceptance condition as this case, the importer can deliver all shipping documents to the importer even if it merely accepts the bill of exchange, and thus, unlike L/C transaction guaranteed by the issuing bank, whether the bill of exchange will be settled normally is determined by the importer's intent and ability to pay the bill of exchange. Therefore, the plaintiff, as a matter of course, has a duty of due care to secure an adequate security in preparation for refusal of acceptance or payment of the bill of exchange at the time of purchase of the bill of exchange. The plaintiff did not accept the bill of exchange contract with the Korea Export Insurance Corporation to secure the payment of the export bill of exchange insurance money at the time of purchase of the bill of exchange insurance money, but did not offer any security to secure the payment of the export bill of exchange insurance money at the time of purchase of the bill of exchange insurance money at the time of purchase of the bill of exchange, the plaintiff did not accept the bill of exchange insurance money at the time of purchase of the bill of exchange, but did not accept the bill of exchange insurance money at its own discretion.

In light of the records, the above fact-finding of the court below is just and acceptable, and further, when the plaintiff purchases the bill of this case as security, the plaintiff has already been in arrears with a foreign exchange loan obligation against the plaintiff at the time of the purchase of the bill of this case, and even if the export price on the export declaration completion certificate is too much than the average export price, the export price on the export declaration completion certificate is more than the average export price, but no investigation has been made on the circumstance. Thus, even if the plaintiff as the purchasing bank does not have a duty to verify the truth of the export transaction contents or to obtain a security for the collection of the loan due to purchase of the bill of this case, even if the plaintiff as the purchasing bank does not have a duty to purchase the shipping documents of this case, the plaintiff should have confirmed whether the export contract was normally concluded, or have to purchase the shipping documents of this case after taking measures to recover the loan more clearly, and the plaintiff should have to purchase the above shipping documents without fault in purchasing the bill of this case.

In the same purport, the court below did not err in the misapprehension of legal principles, which confused the status of the purchasing bank and the status of the bill of lading holder, or in the misapprehension of legal principles, as alleged in the grounds for appeal by the plaintiff or the defendant, or in the misapprehension of legal principles. The plaintiff and the defendant's allegation in the grounds for appeal on this part is without merit.

3. Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Son Ji-yol (Presiding Justice)