207Gaz. 1674 Compensation for damages (as referred to in this paragraph)

OO

△ Bank

September 13, 2007

November 15, 2007

1. The defendant shall pay to the plaintiff 93, 479, 886 won with 5% per annum from March 15, 2007 to November 15, 2007, and 20% per annum from the next day to the day of complete payment.

2. The plaintiff's remaining claims are dismissed.

3. Of the litigation costs, 70% is borne by the Plaintiff, and the remainder 30% is borne by the Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

The defendant shall serve to the plaintiff KRW 311, 599, 620 and a copy of the complaint of this case as to the plaintiff

C. The amount shall be paid at the rate of 20% per annum from the date of full payment.

1. Facts of recognition;

The following facts are not disputed between the parties, or are acknowledged by Gap evidence 1 through 3, evidence 5-1 through 11, evidence 7, evidence 13-1 and 13-2, and testimony of witness lawsuit by integrating the whole purport of pleadings:

A. The Plaintiff is a doctor who operated △△ Hospital, and Nonparty 1 works as the head of the above hospital operated by the Plaintiff and was in charge of the work of claiming medical expenses and collecting money.

B. The Plaintiff had opened and traded five savings accounts in the name of the Plaintiff at the post office of the Defendant Bank at the Dong branch of the Defendant Bank. On February 19, 2002, Nonparty 1 visited Nonparty 2, a staff member in charge of the Plaintiff’s savings deposit account (the Plaintiff’s seal imprint number and its seal imprint number are completely different) under the Plaintiff’s name when submitting an application for transaction under which the Plaintiff’s seal imprints the Plaintiff’s resident registration certificate in advance, pretending that he was the Plaintiff. Nonparty 2 did not confirm whether the applicant was the Plaintiff himself or not, or issued the Plaintiff’s lawful delegation from Nonparty 1, without confirming whether the applicant was the Plaintiff’s resident registration certificate by means of receiving the original copy of the Plaintiff’s resident registration certificate.

C. Upon the opening of the instant account, Nonparty 1 requested the insurance company, etc. to remit the instant account in claiming medical expenses to the instant account. From February 22, 2002 to August 2006, Nonparty 1 received the remittance of medical expenses more than 300 times from February 22, 2002, and used the said deposit passbook to withdraw KRW 311,59,620 for the said period, using the said deposit passbook and arbitrarily used it. Upon the occurrence of such embezzlement, Nonparty 1’s embezzlement was discovered.

10. The police officer escaped.

D. Article 3(1) of the former Act on Real Name Financial Transactions and Guarantee of Secrecy (amended by Act No. 6429, Mar. 28, 2001; hereinafter "the Act on Real Name Financial Transactions and Guarantee of Secrecy") provides that a financial institution shall conduct a financial transaction according to the trader's real name (hereinafter "real name"). Article 3(3) of the same Act and Article 3(1) of the Enforcement Rule of the same Act provide that an individual shall, in principle, conduct a real name verification as a resident registration certificate in the case of an individual. Accordingly, a financial institution must confirm whether he/she is the principal through the original resident registration certificate in principle at the time of opening a deposit account, and if a person who is not the principal applies for the establishment, the power of delegation and the delegated person's resident registration certificate are confirmed.

2. Determination

(a) Occurrence of liability for damages;

In light of the following: (a) if a financial institution does not take a minimum procedure for confirming identity cards of the principal or his/her agent in the course of opening a deposit account, or for confirming the identity cards of his/her agent, etc., it can be easily predicted that a person can commit a criminal act by deceiving the money to a bank account opened in the name of the principal; (b) even if a financial institution takes the minimum measure as above, it may eliminate the potential risks; and (c) there is no entity to perform the above role other than a financial institution going to open a deposit account; and (d) a financial institution takes the minimum measure as above regardless of its duty of real name verification as prescribed in the Act on Real Name Financial Transactions and Confidentiality to prevent the possibility of being used in criminal acts against an unspecified number of unspecified victims including the principal and his/her agent, and thus, it has a duty of care not to assist in a tort; and (e) if such measure was not taken at all, if a criminal act committed by the principal and a third party to receive losses from the third party, then the financial institution is obligated to perform the duty of due care to pay damages to the third party 20.

1. 13. See Supreme Court Decision 2003Da54599 Decided 13.

According to the above facts, Nonparty 2, an employee of Defendant Bank, must verify whether the applicant for opening a deposit account is the Plaintiff himself/herself or whether the Plaintiff was duly authorized by the Plaintiff by means of receiving the original copy of the Plaintiff’s resident registration certificate. However, in violation of the Act on Real Name Financial Transactions, Nonparty 2, an employee of Defendant Bank, should verify whether the applicant for opening a deposit account, based only on the copy of the Plaintiff’s resident registration certificate submitted by Nonparty 1, and issued the deposit passbook. Accordingly, a proximate causal relationship between Nonparty 2’s mistake and the Plaintiff’s loss occurred. Thus, the Defendant Bank, the employer, is liable for compensation for the damages suffered by the Plaintiff due to the above illegal act by Nonparty 2.

B. Limitation on liability

However, in light of the fact that Nonparty 1 is in the position of the employee under the direction and supervision of the plaintiff, in particular, the person in charge of the claim for medical expenses in the insurance company, etc., and the period of Nonparty 1 opened the account in this case and embezzled the money reaches four years and six months, and that the plaintiff did not discover it in advance, and that the plaintiff's wife copied the plaintiff's resident registration certificate upon the request of Nonparty 1 for the necessity of the hospital business, and all other circumstances revealed in the argument in this case, it is reasonable to limit the scope of the responsibility of the defendant bank to 30% of the damage suffered by the plaintiff.

3. Conclusion

Therefore, the defendant is obligated to pay to the plaintiff 93,479,886 won ( = 311,59,620 won x 30%) and damages for delay calculated at the rate of 20% per annum under the Civil Act from March 15, 2007, which is the day following the service of a copy of the complaint of this case, to November 15, 2007, as requested by the plaintiff, it is reasonable for the defendant to dispute about the existence and scope of the duty to perform as to the defendant from March 15, 207, and from the next day to the day of complete payment, 5% per annum under the Civil Act until November 15, 207, and 20% per annum under the Act on Special Cases Concerning Promotion, etc. of Legal Proceedings, etc.

Justices Kim Yoon-young

Judges Cho Jin-young

Judges Seo-Un et al.