The case holding that Byung is liable for damages equivalent to the subrogated repayment amount under Article 756 of the Civil Act, in case where Eul purchased real estate under Eul's name, Eul purchased the real estate under which the right to collateral security was established, Byung bank and Byung bank, and Eul bank cancelled the right to collateral security and completed the registration of transfer of ownership, Byung bank's loan, and Byung agreed to entrust Byung bank with the certified judicial scrivener designated by Byung bank; Byung embezzled Byung bank's definition of certified judicial scrivener Byung; Byung bank embezzled Eul's loan, etc.; Eul's voluntary auction procedure under Eul bank's name was followed; and Eul subrogated repayment of debt, Byung bank as Eul and Eul bank's non-user;

In a case where Gap purchased real estate under Eul's name which was created the right to collateral security under Byung bank's name, and after cancelling the right to collateral security and completing the registration of transfer of ownership with Byung bank's loan, Byung bank established the first priority right to collateral security under Byung bank's name, and Byung agreed to entrust Byung bank with the judicial scrivener designated by Byung bank. Byung embezzled embezzled the loan from Byung bank's definitions of judicial scrivener Byung bank's name, and subsequently forfeited Eul's loan to Eul, the court held that Byung bank was responsible for compensating Byung for losses caused by Byung's act of embezzlement and execution of the right to collateral security under Eul bank's name, on the ground that Byung's loan was executed before cancellation of the right to collateral security or transfer of ownership was done within its territory and it was necessary to process Eul's registration in order to reduce the risks arising therefrom. In light of all the overall circumstances, Byung bank delegated Eul's business as well as the right to collateral security under Eul bank's name to collateral security.

Article 756 of the Civil Act

Plaintiff (Attorney Lee B-hee, Counsel for the plaintiff-appellant)

Defendant 1 and two others (Law Firm Samil, Attorneys Lee Gyeong-hee et al., Counsel for the defendant-appellant)

September 15, 2015

1. Defendant 1 and Daegu Bank Co., Ltd. jointly pay to the Plaintiff the amount calculated by jointly paying to the Plaintiff the amount of KRW 267,080,937 as well as the amount of KRW 267,080 from October 14, 2014 to January 15, 2015; Defendant Daegu Bank Co., Ltd. 5% per annum from October 31, 2014 to the date of full payment; and 20% per annum from the following day to the date of full payment.

2. The plaintiff's claim against the defendant 2 is dismissed.

3. Of the costs of lawsuit, the part arising between the Plaintiff, Defendant 1 and Daegu Bank shall be borne by the Defendants, and the part arising between the Plaintiff and Defendant 2 shall be borne by the Plaintiff.

4. Paragraph 1 can be provisionally executed.

The disposition No. 1 and Defendant 2 shall jointly pay 267,080,937 won and 5% per annum from October 14, 2014 to the service date of the copy of the complaint of this case, and 20% per annum from the following day to the day of full payment.

1. Facts of recognition;

A. On January 26, 2014, the Plaintiff entered into a contract with Nonparty 1 and Nonparty 2 (hereinafter “instant seller”) to purchase KRW 430,000,000 for the purchase price (hereinafter “instant real estate”). On March 17, 2014, the Plaintiff paid the sales price of KRW 43 billion on the day of the contract, the intermediate payment of KRW 30 million on February 28, 2014, and the remainder of KRW 360,000,000,000 to each of the instant sellers on March 17, 2014.

B. The instant real estate was completed by Nonparty 1, Nonparty 1, Korea Standards Bank Co., Ltd. (hereinafter “Korea Standards Bank”), the maximum debt amount of KRW 300 million (hereinafter “the instant priority mortgage”). At the same time as the Plaintiff’s remainder payment was made, the instant seller agreed to cancel the registration of the establishment of a mortgage at the same time as the Plaintiff’s remainder payment.

C. The Plaintiff obtained a loan (hereinafter “instant loan”) from the Defendant Daegu Bank (hereinafter “Defendant Bank”) on security of the instant real estate with respect to KRW 15 million, which is part of the remainder, and agreed with the Defendant Bank on the loan, with a plan to pay to the seller of the instant loan, by finding the deposit in the Defendant Bank with respect to the remainder.

D. As Defendant 2, an employee of the Defendant bank, who carried out the instant loan business, was processed before the registration of ownership transfer under the name of the Plaintiff was effected, in order to secure the security of the Defendant bank, the above registration process shall be entrusted to the certified judicial scrivener designated by the Defendant bank, and the Plaintiff consented to the settlement of the instant loan by guiding the Plaintiff that the instant loan could not be immediately paid to the Plaintiff, and the seller of the instant case received the remainder payment from the Plaintiff, by receiving the balance after deducting the amount necessary for the cancellation of the instant senior mortgage, and by submitting the relevant documents necessary for the procedures for the registration of ownership transfer.

E. Meanwhile, Defendant 1, a certified judicial scrivener, has been designated and processed as a certified judicial scrivener with respect to various registration affairs arising out of the transactional relationship requiring the processing of registration, and the deceased Nonparty 3 (hereinafter “Nonindicted 3”) has served as the secretary of Defendant 1.

F. On March 17, 2014, when Defendant 2 issued a cashier’s check and delivered the instant loan to Nonparty 3, Defendant 2 paid the remainder money necessary for the cancellation of the instant prior mortgage from the Plaintiff to the Korea Standards Bank. Upon receipt of the relevant documents from the said bank, Defendant 2 cancelled the registration of the establishment of the instant prior mortgage and, along with, required to process the registration of the ownership transfer in the name of the Plaintiff and the registration of the establishment of the neighboring mortgage in the name of the Defendant bank.

G. On March 17, 2014, the Plaintiff, the seller of this case, and Nonparty 3, at the real estate agent office of Nonparty 4, who arranged the contract of this case, paid the amount in excess of the loans of this case to Nonparty 3 by taking the amount necessary for cancelling the senior mortgage of this case as KRW 252,69,537, at the real estate agent office of Nonparty 4, who arranged the contract of this case. The seller of this case also transferred the documents necessary for registering the transfer of ownership to Nonparty 3.

H. On March 17, 2014, Nonparty 3 completed the registration of ownership transfer in the name of the Plaintiff on the instant real estate ( Daegu District Court Decision 55080, Mar. 17, 2014) and the registration of ownership transfer in the name of the Defendant bank (Seoul District Court Decision 55080, Mar. 17, 2014) and the registration of creation of a neighboring mortgage with the Defendant bank as a mortgagee (hereinafter “the registration of establishment of a neighboring mortgage in the Defendant bank”), but the instant senior mortgage was not cancelled by embezzlementing the said money without paying a loan to the Switzerland Bank.

(i) The Korea Housing Finance Corporation, which was entrusted by the Switzerland Bank, applied for a voluntary auction based on the instant senior mortgage established on the instant real estate as Daegu District Court No. 2014TAD 20146, Aug. 18, 2014. The Plaintiff paid the principal and interest debt amounting to KRW 267,080,937 on October 13, 2014 to the third acquisitor, and completed the registration of cancellation of the instant senior mortgage on the same day.

[Reasons for Recognition]

Defendant 1: Article 208(3)3 of the Civil Procedure Act (by public notice)

Defendant 2 and Defendant Bank: The absence of dispute, Gap evidence 1 through 6, 12 through 15, and each statement of evidence 17 (including each number), the purport of the whole pleadings.

2. Determination as to the claim against Defendant 1

A. In a case where an employee intentionally inflicts loss on another person, even if the act was conducted in the course of performing all or part of the employee’s business, or when the motive is related to the handling of business, the employee’s act of performing the business is deemed to be an act of performing the employee’s business, and thus, the employee’s liability is established (see, e.g., Supreme Court Decisions 9Da47297, Feb. 11, 2000; 2008Da89712, Feb. 26, 2009).

B. According to the above facts, Nonparty 3, the chief executive officer of Defendant 1, embezzled the money paid for the cancellation of the instant senior mortgage in the course of managing the cancellation of the instant senior mortgage and the registration of ownership transfer, and the registration of establishment of the establishment of the Defendant bank adjacent to the instant real estate (hereinafter “each of the instant registration affairs”), and thereby, the Plaintiff, the third purchaser of the instant real estate, subrogated the repayment of KRW 267,080,937 on October 13, 2014, thereby causing damages equivalent to the said money to the Plaintiff. Accordingly, Defendant 1, as the employer of Nonparty 3, is liable to compensate the Plaintiff for the damages incurred by the Plaintiff.

C. Therefore, Defendant 1 is obligated to pay to the Plaintiff the amount of subrogated repayment of KRW 267,080,937 as well as damages for delay calculated at the rate of 5% per annum as stipulated in the Civil Act from October 14, 2014 to January 15, 2015, the delivery date of a copy of the complaint of this case, and 20% per annum as stipulated in the Act on Special Cases Concerning Expedition, etc. of Legal Proceedings from the next day to the day of full payment.

3. Determination on the Plaintiff’s claim against Defendant 2

A. The plaintiff's assertion

1) Defendant 2 entered into a delegation agreement with the Plaintiff to entrust the handling of each of the registration affairs of this case to Nonparty 3. Since Nonparty 3’s embezzlement inflicted damage on the Plaintiff, the above Defendant is liable to compensate for damages due to nonperformance of contractual obligations or tort due to negligence due to the lack of the duty of care as a delegated administrator of the registration of cancellation of senior mortgage of this case.

2) Defendant 2: (a) executed the instant loan without cancelling the prior mortgage; and (b) immediately paid it to Nonparty 3, who is not the Plaintiff, aided and abetted Nonparty 3 to facilitate the embezzlement.

3) Defendant 2 directly delivered the instant loan to Nonparty 3 by the check, and Defendant 1 and Nonparty 3 did not properly handle each of the registration affairs of this case, even though they were negligent in neglecting their duty of care to prevent damages by taking measures such as recovering the price necessary for cancellation of the instant senior mortgage, it was due to negligence, and thereby causing damages equivalent to the amount of the said subrogated loan to the Plaintiff. Therefore, Defendant 2 is liable to compensate the Plaintiff for damages incurred by the Plaintiff.

B. Determination as to the claim based on the delegation agreement between the Plaintiff and Defendant 2

Even if Defendant 2 agreed that Defendant 2 would take charge of the cancellation of the instant senior mortgage, it is an agreement that Defendant 2 would take place in the course of performing the Defendant bank’s lending business, and thus, it can be deemed an agreement that is made on behalf of the Defendant bank on behalf of the Defendant bank. This agreement can be deemed a delegation agreement between the Defendant bank and the Plaintiff, and it cannot be deemed an agreement that Defendant 2 agreed to handle the Plaintiff’s business, and therefore, the Plaintiff’s assertion that the Plaintiff delegated the registration management business to Defendant 2, who is not

C. Determination as to the claim for damages caused by aiding and abetting Defendant 2’s embezzlement

Defendant 2 did not have any evidence to acknowledge the fact that Nonparty 3 was aware of, or had an intention to facilitate, embezzlement of the instant amount at the time of the remainder payment of the instant contract. Even if Defendant 2 immediately paid the instant loan to Nonparty 3, it is insufficient to recognize that Defendant 2 aided and abetted Nonparty 3’s embezzlement on the sole basis of the fact that the Defendant bank was in the form of performing the duties of registering and handling it to a certified judicial scrivener, and there is no other evidence to acknowledge it. The Plaintiff’s assertion is without merit.

D. Determination on the claim for damages by Defendant 2’s negligence

The above facts, Gap evidence Nos. 17, Eul evidence Nos. 2 and 3 (including each number), and the testimony of non-party Nos. 4, the following circumstances, which are acknowledged as comprehensively taking account of the overall purport of the pleadings, i.e., the circumstance that defendant Nos. 2 has carried out the instant affairs in violation of the guidelines for the loan operation of the defendant bank. ② On March 21, 2014, defendant Nos. 2 confirmed the circumstance immediately after he was aware of the fact that the establishment registration of the instant senior mortgage was not cancelled, and he confirmed the circumstance to the non-party No. 3. 3. The priority mortgage of this case could not be cancelled immediately after the arrival of the documents necessary for the cancellation of the senior senior mortgage. The plaintiff's assertion that the transfer of ownership and the establishment of the collective security right of this case could not be seen as being normal after confirming the transfer of ownership and the cancellation of the senior mortgage of this case, and that it could not be seen as having been requested by the non-party No. 2 to secure 3's.

E. Sub-decision

Therefore, the plaintiff's claim against the defendant 2 is without merit.

4. Determination on the claim against the defendant bank

A. The parties' assertion

1) The plaintiff's assertion

In order to secure its effective collateral, the Defendant bank agreed with the Plaintiff to handle the cancellation of the instant senior mortgage and the registration of transfer of ownership in the name of the Plaintiff to a certified judicial scrivener directly traded by the Defendant bank, in addition to the registration of creation of a mortgage on the instant senior mortgage, which is its own own business, and accordingly, the Defendant bank paid the instant loan to Nonparty 3, not the Plaintiff. The Plaintiff also paid additional funds necessary for the cancellation of the instant senior mortgage in accordance with the agreement with the Defendant bank. Since the Plaintiff was damaged due to Nonparty 3’s embezzlement, the Defendant bank is liable to compensate for damages suffered by the Plaintiff on the basis of ① the nonperformance of the duty under the delegation agreement with the Plaintiff or ② the delegated administrator with respect to the cancellation of the senior senior mortgage due to Nonparty 3’s gross negligence.

2) Defendant Bank’s assertion

The registration delegated by the Defendant bank to Defendant 1 is only the establishment registration of a mortgage near the Defendant bank. In addition, the cancellation of the instant senior mortgage or the registration of transfer of ownership in the name of the Plaintiff was directly delegated by the instant seller or the Plaintiff to Defendant 1 or Nonparty 3. As such, in relation to the cancellation of the instant senior senior mortgage, the Defendant bank did not have a delegation relationship between the Defendant bank and Defendant 1 or Nonparty 3, and the Defendant bank did not agree to take charge of the cancellation of the instant senior senior mortgage. Thus, the Plaintiff’

B. Determination

1) A delegating the cancellation of the instant senior mortgage to Defendant 1, etc.

In light of the following circumstances, the Plaintiff bank was obligated to directly cancel the registration of the instant mortgage by taking account of the following facts: (i) the seller was the seller of the instant mortgage; and (ii) the seller was required to dispose of the instant mortgage before the cancellation of the instant mortgage or the transfer of ownership in the name of the Plaintiff; and (iii) the Defendant bank was required to process the instant loan within its own territory; and (iv) the Plaintiff bank was obliged to directly cancel the registration of the instant mortgage to Nonparty 1 through the certified judicial scrivener designated by the Defendant bank, on the premise that the cancellation of the instant senior mortgage registration was based on the following facts: (i) the Plaintiff bank was aware of the fact that the instant loan and the instant senior mortgage registration were not in the name of the Plaintiff; and (iv) the Plaintiff bank did not directly request the Plaintiff to cancel the registration of the instant mortgage; and (iii) the Plaintiff bank was obliged to directly transfer the ownership of the instant loan and the instant senior mortgage registration to the Plaintiff.

2) Defendant Bank’s employer liability

A) In order to establish an employer’s liability for a tort, the relationship of use between the employer and the tortfeasor, i.e., the relationship between the employer and the tortfeasor, and in the case of delegation, the relation of direction and supervision between the delegating and the mandatary, and in case where the mandatary’s tort is objectively related to the performance of duties of the mandator, the mandator is liable for the tort committed by the mandatary (see Supreme Court Decision 96Da25500, Apr. 28, 1998).

In addition, the employer liability under Article 756 of the Civil Act provides that an employee who used another person’s business shall compensate for damages incurred to a third party in connection with the performance of his/her business (see Supreme Court Decision 89Meu2278, Oct. 10, 1989). “Business” includes not only legal and continuous, but also factual and temporary matters (see Supreme Court Decision 89Meu2278, Oct. 10, 1989). Furthermore, “use relationship” does not limit the effective employment contract, but also includes the existence of remuneration and the short term of the period. In cases where a business is carried out according to another person’s actual direction and supervision (see Supreme Court Decision 2003Da49542, Dec. 26, 2003). Regardless of whether the actual direction and supervision were carried out, the employer is determined based on whether the employer was in a position to direct and supervise the illegal person (see Supreme Court Decision 2001Da365867, Jun. 29, 2007). 207

B) In full view of the aforementioned circumstances, the following circumstances, which are acknowledged by comprehensively taking account of the evidence and the overall purport of oral argument, i.e., Defendant 1 did not receive a direct commission from Defendant bank regarding the cancellation of the instant senior mortgage; however, Defendant bank is allowed to conduct relevant registration affairs only through Defendant 1, a certified judicial scrivener, and thus, Defendant bank was fully aware of the fact that: (a) Defendant bank received a fee from the person liable for registration and the person liable for registration; and (b) Defendant 1’s execution of registration affairs by Nonparty 3 is in most cases of Nonparty 3; and (c) Defendant bank was in the relation of direction and supervision of Defendant bank and Nonparty 3 as a matter of principle in handling the application for registration affairs; and (d) as seen earlier, Defendant bank is in the relation of de facto directing and supervising Defendant 1 and Nonparty 3 as to the cancellation of the instant senior senior mortgage and the establishment of Defendant bank’s establishment of a senior mortgage on behalf of Nonparty 3. Therefore, Defendant bank is liable for damages to Defendant 1 and Nonparty 36’s employer.

C. Sub-decision

Therefore, Defendant Bank is jointly and severally with Defendant 1, who is obligated to pay to the Plaintiff the amount of KRW 267,080,937, which the Plaintiff repaid on behalf of the Plaintiff, as well as damages for delay calculated at the rate of 5% per annum prescribed by the Civil Act from October 14, 2014 to October 31, 2014, which is the delivery date of a copy of the complaint of this case by Defendant Bank, and 20% per annum prescribed by the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the next day to the date of full payment.

5. Conclusion

If so, each claim against the defendant 1 and the defendant bank shall be accepted on the ground of the reason, and the claim against the defendant 2 shall be dismissed on the ground of the reason, and it is so decided as per Disposition.

Judges Shyeong-hee (Presiding Judge)