Time when an entrustment contract for securities sale and purchase is concluded;

The time of establishment of an entrustment contract for securities transaction shall be immediately established when an employee who has an authority to receive entrusted money or entrusted securities receives money or stocks from the customers who entrusted such money or stocks with the intention of entrusting the securities transaction. The management of the money received by the employee thereafter shall not affect the establishment of the above contract.

Article 101 of the Commercial Act, Article 2 (8) of the Securities and Exchange Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jae-soo et al., Counsel for plaintiff-appellant)

Park Jong-sung et al., Counsel for the plaintiff-appellant-appellant

Attorney Lee Young-young, Counsel for the defendant corporation

Seoul High Court Decision 92Na61517 delivered on December 9, 1993

The part of the judgment of the court below against the defendant against the plaintiff Park Jong-sung is reversed, and that part of the case is remanded to the Seoul High Court.

The appeal by the plaintiff is dismissed.

The costs of appeal to the Supreme Court are assessed against the plaintiff.

1. First, we examine the ground of appeal by the plaintiff Oral forest.

The fact-finding by the court below as to the non-party 1, the head of the branch office of the defendant company, when opening a consignment account for stock trade as at the time of original adjudication, is justified in light of the relation of evidence as stated by the court below, and there is no error of finding a fact-finding in violation of the rules of evidence as at the time of the accident in this case, and in light of all the circumstances recognized by the records, it is not recognized that the court below's appraisal at 30 percent of the above plaintiff's negligence ratio is not considerably unreasonable in light of the principle of equity. Thus, the court below's determination at 30 percent of the above plaintiff's negligence ratio is not erroneous in the misapprehension of legal principles as to comparative negligence. The arguments are without merit.

2. We examine the defendant's grounds of appeal.

According to the reasoning of the judgment below, the court below, based on its macroficial evidence, determined that the non-party's company should arbitrarily sell and purchase the above plaintiff's shares, intent to arbitrarily withdraw the shares and deposit money from the above plaintiff's account, and make the above plaintiff prepare an agreement for transaction and receive 62,00,000 won from the above plaintiff's deposit money from the above plaintiff's office, and then, the non-party company should arbitrarily withdraw the above plaintiff's shares and pay damages to the above plaintiff's company's company's employees by forging the above agreement with the above plaintiff's name, forging the above agreement with the signature of the above plaintiff's name, and forging the above agreement with the signature of the above plaintiff's account management ledger which kept in the defendant company's custody, and then manipulate the above plaintiff's shares with the above plaintiff's personal seal impression's personal seal impression, which had been forged and falsified, and then, the defendant company should arbitrarily withdraw the above plaintiff's shares and the above defendant's company's employee's above company's company's company's money and its employees.

However, the time of the conclusion of the entrustment contract for securities trading is that the entrustment contract is established immediately when an employee who has an authority to receive the entrustment money or the entrusted securities receives the money or stocks from the customer who entrusted the sale of securities with the intention of entrusting the sale of securities, and the management of the employee's money to receive the money thereafter does not affect the formation of the contract.

Therefore, inasmuch as the above plaintiff provided deposits and stocks with the intention of entrustment and received them by the non-party entitled to receive them in the course of performing their duties, even if the non-party thought that the above plaintiff would use cash and stocks deposited from the beginning, the entrustment contract for securities transaction between the above plaintiff and the defendant company was legally established. Therefore, the above entrustment contract for the above plaintiff realizing the above entrustment contract with his intention does not cause any damage (the claim for damages caused by non-performance of entrustment contract is a separate issue). Further, the non-party's act of forging the above plaintiff's reporter and forging the agreement by forging it is merely a series of preliminary acts or means for occupational embezzlement (this does not affect the validity of the entrustment contract legally established) and it cannot be deemed that the non-party acquired cash and stocks deposited from the above plaintiff (see Supreme Court Decision 87Do2168, Dec. 22, 1987). Thus, the judgment of the court below erred by misapprehending the legal principles as to the amount of damages at the time of the above entrustment contract and its establishment.

3. Accordingly, without examining the defendant's remaining grounds of appeal, the part of the judgment of the court below against the defendant as to the plaintiff Park Jong-sung is reversed, and this part of the case is remanded to the court below for further proceedings consistent with this Opinion. The appeal by the plaintiff Park Byung-soo is dismissed. The costs of appeal by the part of the appeal are assessed against the losing party. It is so decided as per Disposition with the assent of all

Justices Park Jong-ho (Presiding Justice)