[1] The scope of a customer's property loss caused by voluntary trade by employees of a securities company

[2] The method of assessing shares held by a customer prior to voluntary sale in calculating the amount of loss incurred by a customer in the course of voluntary sale by employees of a securities company

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

[1] Supreme Court Decision 98Da39633 delivered on November 10, 200 (Gong2001Sang, 6) Supreme Court Decision 2003Da49542 delivered on December 26, 2003 (Gong2004Sang, 230) / [2] Supreme Court Decision 93Da26618 delivered on September 28, 1993 (Gong193Ha, 2969), Supreme Court Decision 94Da16786 delivered on October 12, 1995 (Gong195Ha, 3721) (Gong27 delivered on November 24, 2000)

Plaintiff

Defendant 1 and one other (Law Firm continental, Attorneys Noh Sang-jo et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2001Na26547 delivered on January 18, 2002

The part of the lower judgment against the Defendants is reversed, and that part of the case is remanded to the Seoul High Court.

1. On April 21, 200, Defendant 1, an employee of Defendant 2 Co., Ltd. (hereinafter “Defendant 2”), without being delegated by the Plaintiff, arbitrarily sold the entire shares of the Plaintiff’s account and purchased shares of other items. The lower court assessed the difference between KRW 1,270 of the shares of Nonparty 1 Company (hereinafter “voluntary sold shares”) and KRW 219,566 of the deposits, and KRW 1,300 of the shares of Nonparty 2 Company (hereinafter “Voluntary purchased shares”) and KRW 3,021,867 of the shares after voluntary sale. The lower court assessed the price of the shares to be sold at the time when the Plaintiff continued to hold the shares, based on objective presumption that the voluntary sold shares would have been at the time when the purchase price of the shares would have been at the market price in consideration of possibility of disposal of the shares, and then assessed the price of the shares at the time when the purchase price of the shares would have been at the time of voluntary sale.

2. Property damage caused by an illegal act refers to the difference between the property disadvantage caused by the illegal act and the property condition that would have existed without the illegal act, i.e., the property condition that was caused by the illegal act, and the property condition after the illegal act was committed. In a case where a voluntary sale seeks damages on the premise that the illegal act is a tort, the difference between the balance between the shares and deposits of the customer previously held before the voluntary sale and the subsequent order of the customer shall be deemed to be property damage, i.e., the difference between the balance between the shares and deposits held at the time when the customer files the issue of the voluntary sale with the knowledge of such fact (see Supreme Court Decision 98Da39633, Nov. 10, 200).

Therefore, in this case, the appraisal of shares held by the customer prior to the voluntary sale should be determined on the basis of the market price of shares at the time of the voluntary sale, and even if the price of shares was lower, additional damages therefrom had been caused by special circumstances and thus, the customer could have known or could have known such special circumstances at the time of the disposal of shares. In addition, the customer may claim damages according to the price of shares at such price only where the customer would have been able to clearly acquire profits due to the sale of shares when the price of shares was lower (see Supreme Court Decision 94Da16786 delivered on October 12, 195).

3. In light of this, in this case, where the plaintiff's voluntary sale of shares and deposits previously held by the plaintiff prior to such voluntary sale and damages claim, the court below's finding the difference between the balance of shares and deposits held by the plaintiff at the time when the plaintiff raised the issue of voluntary sale and the shares held by the defendant 1 as losses shall be a justifiable judgment in conformity with the above legal principles. However, the appraisal of shares sold voluntarily shall be based on the market price at the time of voluntary sale and the damages caused by increase in the price of shares after such voluntary sale and purchase shall be determined after examining whether the defendant 1 knew or could have known such circumstances. The court below, without examining and determining them, shall find out the facts that the plaintiff's voluntary sale and purchase of shares were made at the time of voluntary sale and purchase, and it shall be determined at the time of voluntary sale and purchase as damages caused by the increase in the price of shares after such voluntary sale and purchase, and it shall be decided at the time of 00 p.m., the court below's determination of the above legal principles as to the plaintiff's voluntary sale and sale and purchase and sale of shares.

4. Therefore, the part of the judgment of the court below against the Defendants is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Shin-chul (Presiding Justice)