Hanpo Bank (Law Firm Sejong, Attorneys Kim Yong-ho et al., Counsel for the plaintiff-appellant)

Samsung Fire & Marine Insurance Co., Ltd. (Attorney Lee Young-soo, Counsel for defendant-appellant)

oly 5, 2003

Seoul District Court Decision 2001Gahap68391 Delivered on September 27, 2002

1. Of the judgment of the court of first instance, the part of the judgment against the defendant ordering payment of KRW 2,453,326,778 to the plaintiff and its related amount from April 1, 2001 to May 31, 2003, and the part against the defendant ordering payment of KRW 20% per annum from the next day to the full payment date shall be revoked, and the plaintiff's claim corresponding to the above revoked part shall be dismissed.

2. The defendant's remaining appeal and the defendant's request for return of provisional payment are dismissed, respectively.

3. The total cost of the lawsuit and the cost of the application for the return of the provisional payment shall be borne by the defendant.

1. Purport of claim

The defendant shall pay to the plaintiff 2,453,326,778 won with 6% interest per annum from April 1, 2001 to the delivery date of a copy of the complaint of this case, and 25% interest per annum from the next day to the full payment date.

2. Purport of appeal

The part against the defendant in the judgment of the first instance shall be revoked, and the plaintiff's claim corresponding to that part shall be dismissed.

3. Purport of request for the return of provisional payments;

The plaintiff shall pay to the defendant the amount of KRW 2,689,518,292 due to the return of provisional payment and the amount of 6% per annum from October 8, 2002 to the date of notification of the decision, and 25% per annum from the next day to the date of full payment.

1. Basic facts

A. On December 22, 200, the Plaintiff entered into a comprehensive insurance contract with the Defendant, which engages in the business of insurance, etc. on December 22, 2000, with the insurance period from December 22, 200 to December 22, 2001, with the insurance premium of KRW 222,871,00, and the maximum amount of compensation, three billion won; however, the amount of deduction applicable to each item of insurance is KRW 300 million (hereinafter “instant insurance contract”); and the said insurance contract aims to guarantee the Plaintiff’s damage, etc. solely or directly caused to the Plaintiff solely or in collusion with other persons, regardless of whether the Plaintiff’s employee gains his/her own property interest, by means of a negative or fraudulent act committed by himself/herself or in collusion with other persons.

(b) Occurrence of insurance accidents;

(1) On May 15, 200, before entering into the instant insurance contract, Nonparty 1, who was working at the non-party 2’s non-party 2’s non-party 2’s non-party 2’s non-party 2’s non-party 2’s non-party 2’s account, withdrawn 2 billion won by pretending that the said siren was to obtain a loan, and also deposited 1 billion won in the said non-party 2’s account by again withdrawing 1 billion won from the said non-party 2’s account under the same method on September 15, 200, prior to the insurance period.

(2) On January 8, 2001, which is within the insurance period of the instant case, Nonparty 1 deposited the Plaintiff’s account with Nonparty 3, in its own securities company by withdrawing one billion won by pretending that the said Nonparty 3 did not receive a loan, after the fact that there was a limit of non-use credit on the part of the Plaintiff of Nonparty 3’s revolving credit transaction agreement account.

(3) After that, on January 16, 2001, Nonparty 1 was transferred to the branch office of the Plaintiff Company, and on January 27, 2001, Nonparty 4, the representative of the company, made a document as if Nonparty 4 were to receive a loan from Nonparty 5 as collateral, and deposited into the account in the above Nonparty 4’s name. On January 29, 2001, Nonparty 1 withdrawn a check of KRW 3950 million at a face value from the said account, and deposited this in the bank account in the name of Nonparty 6, a securities company’s employees.

(4) On March 20, 2001, Nonparty 1 additionally withdrawn 500 million won in the name of Nonparty 4 in the same manner as the above (3) and deposited it into the securities company’s account.

C. Partial redemption and reimbursement of damages

(1) The non-party 1 transferred the shares of his non-party 1 from the non-luminous branch to the dynamic branch, and then, there is a concern that the illegal withdrawal at his luminouslydong branch may be revealed by the new person in charge of the new luminouslydong branch. The non-party 1 sold his shares on January 18, 201 and deposited them into the non-party 3 account, which was illegally withdrawn on January 8, 2001, within the insurance period of the instant case.

(2) In addition, on January 29, 2001, Nonparty 1 withdrawn 3.1 billion won from among the money illegally withdrawn under the name of Nonparty 4, such as the above B-B-3 on January 29, 2001, and deposited 3.1 billion won from the account held in the name of Nonparty 6, and the remaining 100 million won was deposited in the above non-party 3 account, each of which was illegally withdrawn on January 8, 2001, within the insurance period of this case.

(3) On the other hand, Nonparty 1 paid KRW 1,746,673,222, in total, the sum of the amounts withdrawn from securities and deposit accounts on March 29, 2001, on which his illegal withdrawal was revealed, as damages compensation, to the Plaintiff.

[Ground of recognition] The non-contentious facts, Gap evidence 1-3, Eul evidence 2-8, Eul evidence 1, the results of fact inquiry about the president of the Industrial Bank of Korea and president of the Industrial Bank of Korea, the whole purport of arguments

2. Whether the insurer is obligated to pay insurance proceeds

A. According to the above facts, Non-party 1, the plaintiff's employee, withdrawn 5.5 billion won in a negative way under the intention of obviously benefiting from property during the insurance period of the insurance contract of this case, and thus, the plaintiff suffered damages equivalent to 5.5 billion won due to the non-party 1's illegal act. The non-party 1, out of the above amount, deposited 1 billion won in the account illegally withdrawn during the insurance period of this case, and repaid 1,746,673,222 won to the plaintiff and agreed to deduct 300 million won under the insurance contract of this case. Thus, the defendant, the insurer, is obligated to pay to the plaintiff 2,453,326,778 (50 million won in total,51 billion won in total,746,673,222 billion won in total) and damages for delay.

B. As to this, the Defendant asserts that, among the four billion won withdrawn by Nonparty 1 on January 27, 2001, at least three billion won, at least three billion won was made under the intention to redeem the amount already illegally withdrawn prior to the insurance period of the instant case, it is difficult to view that there was "a clear intention to gain profit from property". Moreover, since the said three billion won was used to redeem the amount already illegally withdrawn prior to the insurance period, the damages of the amount of three billion won already incurred to the Plaintiff, instead of the new damages of the amount of three billion won incurred, shall be compensated for, and the damages of the amount of three billion won already incurred to the Plaintiff shall not be changed to the Plaintiff's whole property.

First, as to whether Nonparty 1 had “a clear intention to gain property profits”, it is insufficient to confirm the fact that Nonparty 1, on January 27, 2001, pretended to receive a loan from Nonparty 4, and deposited 4 billion won into an account in the name of Nonparty 4, but on January 29, 200, deposited 39.5 billion won in the bank account in the name of Nonparty 6, a securities company’s employee, among the above 4 billion won, in the above 4 billion won, into the bank account in the name of Nonparty 6. Thus, according to the above facts found above, Nonparty 1 may be confirmed to have withdrawn the above 4 billion won with the intention to obtain property profits, barring any special circumstance. Since Nonparty 1 again withdrawn 3 billion won after deposit in the deposit account in the name of Nonparty 6 and deposited it in the account in the name of Nonparty 2 prior to the insurance period, it is insufficient to confirm the above facts. Thus, even if Nonparty 1’s act was done with his intention to withdraw the money under his own own risk to withdraw.

Next, with regard to whether the 3 billion won deposited in the account already illegally opened prior to the insurance period out of the 4 billion won illegally withdrawn at the above 4 billion won, which was within the insurance period, constitutes "damage", the loss occurred is determined at the time of the plaintiff's illegal act. The amount of compensation after such illegal act shall be determined at the time of the plaintiff's illegal act. Thus, the amount of compensation after the illegal act shall be deducted from the amount of damages determined at the time of the illegal act. At the time of the illegal withdrawal on January 27, 2001, the accident insured in the insurance contract in this case occurred due to the occurrence of 4 billion won as a result of the illegal act. The non-party 1 deposited the above money in the deposit account under the name of the securities company's employee investing in the insurance period, and repaid it to the account illegally opened prior to the insurance period is merely the amount of damages already accrued prior to the insurance period, and it cannot be deemed that the damages occurred during the insurance period or repaid to the illegal account during the insurance period. Therefore, the defendant's allegation in this part of this case is groundless.

3. Scope of liability to pay insurance proceeds;

The defendant, on January 27, 2001, illegally withdrawn 4 billion won from the plaintiff on January 27, 2001, and repaid the plaintiff's losses incurred by the non-party 1's illegal act on the 29th of the same month prior to the insurance period of the insurance contract of this case, and therefore, the above 3 billion won should be deducted from the amount of damages because the plaintiff's losses occurred due to the non-party 1's illegal act. The profits to be deducted by the offsetting profit and loss should be generated from the facts causing losses and the profits must be proximate causal relation with the illegal act. The above profits of the plaintiff's losses due to the transfer of losses should not be caused by the non-party 1's illegal act, but due to the separate cause of repayment

3. Conclusion

Therefore, the defendant is obligated to pay to the plaintiff 2,453,326,78 won and damages for delay from April 1, 2001 to May 31, 200 and 20% per annum from the next day to 30% per annum under the Special Act on the Promotion, etc. of Legal Proceedings (amended by Act No. 6868 of May 10, 2003), since the remaining amount of 2,450 won and 2,50 won were received from the above non-party 1 to the above non-party 2, 207, 300 won per annum 2,500 won per annum from the above non-party 2, 207, 360 won per annum 2,500 won per annum from the above non-party 2, 36,500 won per annum, and the remaining amount of damages for delay from the above judgment shall be dismissed as it is without merit for the plaintiff's remaining grounds to be accepted as the court of appeal No. 271981,67.

Judges Lee Jong-sung (Presiding Judge)