2015Da83 (Return of retirement pay at the main office)

2015Da90 (Counterclaim) Return of retirement pay

Saryary Appellee

A

Appellant

Daegu Bank, Inc.

Suwon District Court Decision 2014Na4290 decided November 28, 2014 (main office), 2014 Ghana

3466 (Counterclaim) Judgment

December 23, 2015

Of the part concerning the counterclaim of the lower judgment, the part concerning the claim for damages arising from monetary option transaction is reversed, and that part of the case is remanded to the Suwon District Court Panel Division. All of the remaining appeals by the Plaintiff (Counterclaim Defendant) and the appeals by the Defendant (Counterclaim Plaintiff) are dismissed.

The grounds of appeal are examined.

1. As to the grounds of appeal by the Defendant (Counterclaim Plaintiff, hereinafter “Defendant bank”)

According to the reasoning of the lower judgment, the lower court determined that the Defendant bank could not offset the instant special retirement allowance by using the claim for indemnity against the Defendant bank, on the ground that, in light of the following: (a) the system of voluntary retirement implemented by the Defendant bank guarantees all employees falling under a certain class or salary class; (b) the basis for payment of special retirement allowance is specified in the remuneration and retirement allowance regulations; and (c) there is a difference in the amount of retirement allowance depending on the employee’s class; and (b) the instant special retirement allowance does not only have the nature as an honorarium or incentive for early retirement; and (c) Defendant bank’s employees are paid as compensation for their work while

Examining the record in light of the relevant legal principles, the lower court’s aforementioned determination is justifiable, and did not err by misapprehending the legal principles on the nature of the instant special retirement allowance, whether to allow an offset, and the scope thereof, or by failing to exhaust all necessary deliberations.

The Supreme Court precedents cited in the grounds of appeal are different from this case, and it is not appropriate to invoke this case.

2. As to the ground of appeal by the Plaintiff (Counterclaim Defendant, hereinafter “Plaintiff”)

A. As to the liability for damages caused by currency option transaction

1) After finding the facts as indicated in its holding, the lower court determined that the Plaintiff is liable to compensate for KRW 27,814,00,00, which is the amount of compensation determined by the personnel committee’s resolution, on the ground that the Plaintiff neglected to perform an excessive monetary option transaction exceeding the expected export amount after comprehensively examining the transaction as a primary examiner of the instant monetary option transaction, including the financial situation of the transaction partner, the level of financial transaction, the purpose of the pertinent transaction, the type of goods, etc.

2) The Non-Performing Guidelines of this case classifys non-performing assets into intentional, gross negligence, and transitional room according to the type, such as intentional or gross negligence, degree of occupational defect and negligence (Paragraph 8). In principle, a person subject to liability for compensation is subject to non-performing assets arising from intentional or gross negligence. However, a person related to non-performing assets who has been caused by negligent or gross negligence may be subject to the request of standing committee members and compensation by the decision of the personnel committee only in extenuating circumstances (Paragraph 10), and there are separate standards for exemption and mitigation (Paragraph 12), and there are other detailed standards for operating sanctions and reimbursement measures, including the scope of liability for compensation, mitigation of liability, individual liability ratio, and individual indemnity calculation method. The purport of the above provisions is that the defendant bank is limited to cases where the defendant bank is liable for compensation by intentional or gross negligence to the employees to faithfully perform its duties beyond the burden of liability due to negligent negligence, and the defendant bank shall be exempted from liability or its liability within the scope of 15th of the judgment or the decision of the court.

3) However, the following circumstances revealed through the record, namely, ① the personnel guidelines invoked in Section 15 of the Guideline, which classify the offender into “a person who actually led illegal or unreasonable business operations,” ② the assistant as “a person who assisted or led to the decision-making of the offender,” ② the monetary option transaction in this case is an over-the-counter derivatives planned and developed by the head office trading department of Defendant Bank; ③ the Plaintiff, the counterpart to the transaction, as the head office of J-B.

As a result, the instant monetary option transaction was handled at the request of an employee of the head office trading department. However, even if the instant monetary option transaction was made as the primary examiner, the transaction did not go through due process despite the other party’s duty of care to prevent excessive monetary option transaction exceeding the export expected amount by comprehensively examining the financial situation, level of financial transaction, purpose of the pertinent transaction, type of goods, etc., (4) at the time of the Defendant bank, however, the Defendant bank failed to properly perform specific business procedures necessary to deal with over-the-counter derivatives such as the instant monetary option transaction. (3) In light of the legal principles as seen earlier, the Defendant bank considers the employees of the head office trading department as the principal agent leading the unfair handling of the instant monetary option transaction, and the Plaintiff considered the above unfair handling as the subordinate assistant, it is difficult to view it as a gross negligence as provided in the instant monetary option guidelines even if there was negligence on the part of the Plaintiff in handling the instant monetary option transaction.

4) In addition, even if the Plaintiff’s negligence falls under the progress room, the Plaintiff may be held liable for compensation by the “request of standing committee members and decision of the personnel committee” only in exceptional cases under the direction of the book of this case. Thus, the lower court should have deliberated more in detail on whether the decision of the book of this case is inevitable in the course of the above book of this case and judged whether the decision of the book of this case is legitimate.

5) Nevertheless, the lower court recognized the Plaintiff’s liability for damages solely based on the circumstances indicated in its reasoning. In so doing, the lower court erred by misapprehending the legal doctrine on gross negligence on the book guidelines of this case, failing to exhaust all necessary deliberations as to whether it is an inevitable circumstance in the passage room, thereby adversely affecting the conclusion of the judgment. The ground of appeal

B. As to the liability for damages caused by the loan

After finding the facts as stated in its reasoning, the lower court determined that the Plaintiff is liable to compensate Defendant Bank for KRW 11,031,00,000, which is the amount of compensation determined by the personnel committee’s resolution, on the ground that each of the instant loans is recognized as gross negligence without sufficiently examining the adequacy of C’s application for loans and the plan for securing claims, since it was found that the Plaintiff violated C’s obligation to examine loans under the operating guidelines without sufficiently examining the adequacy of C’s application for loans and the plan for securing claims.

Examining the records in light of the relevant legal principles, although the reasoning of the court below is somewhat insufficient, the above conclusion of the court below is just, and contrary to the allegations in the grounds of appeal, the court below did not err by omitting judgment as to the specification of the cause of claim and the absence of damages, thereby affecting the conclusion

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal by the Plaintiff, the part concerning the claim for damages arising from monetary option transaction among the part concerning the counterclaim of the lower judgment is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The remaining grounds of appeal by the Plaintiff and Defendant Bank’s appeal are all dismissed. It is so decided as per Disposition by the assent of all participating Justices

The presiding judge shall keep the record of the Justice

Justices Kim Yong-deok

Chief Justice Park Jong-young

Justices Kim Jae-han