[1] Whether Article 107(1) of the Civil Act may apply mutatis mutandis to an act of acting as an agent in breach of trust by a manager (affirmative), and the criteria for determining whether the other party has acted in bad faith or negligence

[2] The case holding that where the head of a bank acted as an agent in breach of trust against the bank's interest and intent, the act is invalid in relation to the bank which is the principal of the business, recognizing the other party's negligence

[3] In a case where a victim's bad faith or gross negligence is recognized as a tort committed by an employee, whether an employer's liability is recognized (negative)

[4] The case holding that a bank's employer's liability is denied in recognition of the victim's bad faith against the illegal act committed by the head of the bank branch, which appears within the scope

[1] Even if the act of a manager is about business and is within the scope of the power of representation, when the other party exercised his/her authority for the purpose of pursuing his/her own interest or a third party's interest against the principal's interest or will of the business owner, if he/she knew or could have known of the fact of the manager, the business owner himself/herself shall not be held liable for the act of the manager. Whether the other party knew or could have known of the fact that the manager's intention is not true should be determined reasonably based on objective circumstances, such as the process of forming a declaration of intention between the manager and the other party, its contents, and the effects arising therefrom.

[2] The case holding that where the head of a bank arbitrarily released and discounted bills or delivered them as a security for the discounted debt at the bank's point in order to raise the price for the sale of the dys useful dys, the discount and transfer of bills are invalid in relation to the bank, which is the principal of the business, on the ground that it can be sufficiently known if he had exercised ordinary care in light of all the circumstances and circumstances, as an act of breach of trust committed against the bank's interest and intent in financial business.

[3] Even in cases where an employee's illegal act appears to fall under the scope of an employer's external execution of business, where the victim himself/herself knew, or was unaware of due to gross negligence, that the employee's act does not constitute an employer's or supervisor's performance of business on behalf of the employer or employer, the employer's liability may not be imposed on the employee, instead

[4] The case holding that since it is reasonable to view that the head of a bank knew that the act of the head of a bank knew that it does not constitute legitimate execution of the bank's business, in the case where the head of the bank borrowed bills personally or arbitrarily leaked bills to the victim for the purpose of raising the money for the settlement of the money for the settlement of the money for the settlement of the money for the settlement of the discount or delivered them as a security for the said discount to the victim, the head of the branch office personally pays the money for the settlement of the discounted money within two months, the head of the bank cannot be held liable for the employer against the bank

[1] Article 107 (1) of the Civil Code, Article 11 (1) of the Commercial Code / [2] Article 107 (1) of the Civil Code, Article 11 (1) of the Commercial Code / [3] Article 756 of the Civil Code / [4] Article 756 of the Civil Code

[1] Supreme Court Decision 86Da29850 Decided July 7, 1987 (Gong1987, 1292) (Gong1988, 78), Supreme Court Decision 94Da29850 Decided April 26, 1996 (Gong196, 162), Supreme Court Decision 97Da24382 Decided February 27, 198 (Gong198, 867) / [3] Supreme Court Decision 83Da217 Decided June 28, 1983 (Gong1983, 1139), Supreme Court Decision 92Da195390 Decided July 28, 1992 (Gong1953, 197, 197Da1953995 decided July 29, 195)

Korea Light Bank (Attorney Long-ro et al., Counsel for the defendant-appellant)

Kim Young-deok (Attorney Kim Young-ju et al., Counsel for the defendant-appellant)

Seoul High Court Decision 95Na32879, 32886 delivered on December 24, 1996

The appeal is dismissed. The costs of appeal are assessed against the Defendant (Counterclaim Plaintiff).

The grounds of appeal are examined.

1. As to the ground of appeal on the principal lawsuit

A manager may engage in all judicial or extra-judicial acts on behalf of the proprietor of the business, and the restrictions on the manager’s power of representation cannot be set up against a bona fide third party (Article 11(1) and (3) of the Commercial Act). Here, whether a manager’s act concerns the business of the proprietor should be determined abstractly according to the objective nature of the act regardless of the manager’s subjective intent at the time of the act (see, e.g., Supreme Court Decisions 86Da2073, Mar. 24, 1987; 96Da36753, Aug. 26, 197).

However, even if a manager’s act is related to business and constitutes an act within the scope of the power of representation, when the other party exercised his/her authority for the purpose of pursuing his/her own interest or a third party’s interest against the principal’s interest or will, if he/she knew or could have known of the fact of the manager, the proprietor himself/herself shall not be held liable for the act of the manager under an analogical interpretation under the proviso of Article 107(1) of the Civil Act. Whether the other party knew or could have known that the manager’s intention was not a true intention should be reasonably determined based on objective circumstances (see, e.g., Supreme Court Decisions 86Meu104, Jul. 7, 1987; 86Meu371, Nov. 10, 1987; 94Da29850, Apr. 26, 1996; 298Da2784, Apr. 27, 1998).

However, according to the facts established by the court below and the records, since the non-party 1 was the manager of the above bank at a discount rate on the non-party 1's commercial bill, and the non-party 2's act of purchasing and selling the bill at a discount rate on the non-party 1's own interest to the non-party 1's own interest, and the non-party 1's act of purchasing and selling the bill at a discount rate on the non-party 1's own interest to the non-party 2's own interest, and the non-party 1's act of purchasing and selling the bill at a discount rate on the non-party 1's own interest to the non-party 1's own interest to purchase and sell the bill at a discount rate on the non-party 1's own interest to the non-party 2's own interest to purchase and sell the bill at a discount rate on the non-party 1's own interest to the non-party 1's own interest to purchase and sell the bill at a discount rate on its own interest.

Although the reasoning of the judgment below differs, the conclusion of accepting the Plaintiff’s claim on the principal lawsuit is just, and there is no error in the misapprehension of legal principles as to the due cause, the manager’s power of representation, the endorsement of bills, and bona fide acquisition,

This part of the grounds of appeal cannot be accepted.

2. As to the ground of appeal on the counterclaim

A. As to the claim for damages

The phrase "in relation to the performance of an employee's business", which is an element for the employer's liability under Article 756 of the Civil Act, means that if an employee's unlawful act objectively appears to fall under the scope of the employer's business activity or office performance, or to be related thereto, without considering the offender's subjective circumstances. Whether it is objectively related to the performance of an employee's business should be determined by considering the degree of the employee's original duty and tort, and the degree of the employee's occurrence of damage and the degree of the employer's responsibility for failing to take preventive measures (see, e.g., Supreme Court Decisions 86Meu1923, Nov. 22, 198; 95Da46890, Jan. 26, 1996; 95Da39533, Feb. 10, 198; 205Da19879, Feb. 197, 200).

As seen earlier, the bill of this case was endorsed and transferred in cash in the form of discount, and the non-party 1 agreed to pay the discounted amount in cash within two months. Thus, it should be deemed that the non-party 1 borrowed money from the defendant and delivered the bill as collateral. In general, it cannot be said that the discount of the bill of this case was made in personal transactions with the defendant regardless of the business of the nominal branch for enhancing the acceptance report, such as attracting deposits. The discount of the bill of this case was embezzled by the non-party 1 for the purpose of raising his own useful funds, and the defendant was also aware of such circumstances. Thus, the defendant cannot be held liable for damages against the plaintiff bank.

The judgment of the court below to the same purport is just, and there is no error in the misapprehension of the rules of evidence or the legal principles on employer liability.

This part of the grounds of appeal cannot be accepted.

B. As to the return of discount on the warranty period and the return of unjust enrichment

As seen earlier, the discount and endorsement and transfer of the bill No. 1 between Nonparty 1 and the Defendant are null and void in relation to the Plaintiff bank. As such, the Defendant cannot be held liable for warranty on the premise that the said bill was duly acquired by the Plaintiff. Even if Nonparty 1 wired the bill and the bill No. 1 to the Incheon Investment Bank, this cannot be deemed to have been used for the payment of the debt to the Plaintiff bank, and the Defendant’s unjust enrichment cannot be deemed to have been realized as unjust enrichment, since Nonparty 1 sold the bill and the bill No. 1 in this case to the Plaintiff in this case to the Incheon Investment Bank. The Defendant did not have any reasonable ground to deem that the Plaintiff bank used it as unjust enrichment for the payment of the debt to the Plaintiff bank.

The judgment of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as to mistake of facts, act of manager's business, and causation of unjust enrichment.

This part of the grounds of appeal cannot be accepted.

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

Justices Seo Sung-sung (Presiding Justice)