Where an officer first performed the liability under Article 399(1) of the Commercial Act for the damages incurred to a mutual savings and finance company, whether the scope of extinction of joint and several liability for the damages incurred to the deposit account holder pursuant to Article 37-3(1) of the former Mutual Savings and Finance Company Act due to the same act of neglect of duties falls under the exclusive authority of the fact-finding court (affirmative in principle)

Article 37-3(1) of the former Mutual Savings and Finance Company Act (amended by Act No. 6429 of March 28, 2001); Article 399(1) of the Commercial Act

[Plaintiff-Appellant] Plaintiff 2004Da68519 decided Apr. 10, 2008 (Gong2008Sang, 646)

Korea Deposit Insurance Corporation (Attorney Kim Jong-soo et al., Counsel for the plaintiff-appellant)

Defendant 1 and one other (Attorney Seo-hee et al., Counsel for the defendant-appellee)

Daejeon High Court Decision 2005Na7335 decided Dec. 21, 2005

All appeals are dismissed. The costs of appeal are assessed against the Defendants.

1. As to Defendant 1’s grounds of appeal and Defendant 2’s grounds of appeal Nos. 1, 6, 7, and 8

In accordance with Article 37-3 (1) of the former Mutual Savings and Finance Company Act (amended by Act No. 6429, Mar. 28, 2001; hereinafter the same shall apply), an executive responsible for poor management of a credit cooperative due to the embezzlement of assets of a mutual savings and finance company (hereinafter referred to as “mutual savings and finance company”) as well as direct damage to a credit cooperative, or due to an illegal or non-performing loan, or due to a neglect of a fiduciary’s duty or duty of loyalty in managing its assets, etc., shall be jointly and severally liable with the credit cooperative for the debt related to the deposit, etc. of the credit cooperative within the scope of damage suffered by the end and part of the end and part of the credit cooperative (see Supreme Court Decision 2003Da6568, Sept. 29, 2005, etc.).

After finding the facts as stated in its reasoning based on the evidence adopted, the court below rejected the defendant 1 as a director of the non-party 6 mutual savings and finance company, on the ground that the non-party 2 and the non-party 3 acquired the loans as security for the loans, and the non-party 34 square meters of the Seo-gu Daejeon Special Metropolitan City (number omitted) and the non-party 3 were awarded a successful bid for the amount exceeding the appraisal amount and caused damages to the non-party 59,745,000 won to the non-party mutual savings and finance company, and the defendant 2 as a director of the non-party mutual savings and finance company, who did not perform his duty of due care as a good manager in the process of giving loans to the non-party 4,55 and the non-party 6 mutual savings and finance company's non-party 6 mutual savings and finance company's non-party 2 were not liable for damages to the non-party 7,660,464,924 and 300,000.

In light of the above legal principles and records, the above fact-finding and judgment of the court below are just and acceptable, and there are no errors in violation of the rules of evidence or incomplete deliberation, or misunderstanding of legal principles as to the existence and scope of liability for deposit repayment and causation under Article 37-3 (1) of the former Mutual Savings and Finance Company Act, as alleged in the grounds of appeal.

2. As to Defendant 2’s ground of appeal No. 3

The liability for the repayment of deposits by an officer under Article 37-3 (1) of the former Mutual Savings and Finance Company Act is not sufficient to protect the interest of the principle of deposit because the liability for damages under Article 399 of the Commercial Act or the liability for damages under Article 401 of the Commercial Act, which is to be borne by a third party, cannot be fully protected. The right under Article 37-3 (1) of the former Mutual Savings and Finance Company Act is an inherent right recognized to a deposit owner, etc. separate from the right to claim damages against an officer pursuant to Article 399 of the Commercial Act. Therefore, even if an officer first performed the liability under Article 399 of the Commercial Act for damages incurred to a credit cooperative, the liability for the payment of deposits by an officer to the deposit account holder is extinguished only within the extent of the amount paid by the deposit owner to the credit cooperative. However, the officer liable for the payment of deposits under the above Article 37-3 (1) of the former Mutual Savings and Finance Company Act shall not be considered in principle as an unreasonable manner within the extent of damages suffered by a credit cooperative due to its own act.

The court below, based on its adopted evidence, found that the non-party mutual savings and finance companies filed a lawsuit claiming damages against the defendant 2 regarding the damages incurred by each loan to the non-party 4, non-party 5, and non-party 6, etc., and ordered the above defendant to pay damages of 150 million won and damages incurred by the loan to the non-party 8 and ordered the above defendant to pay damages of 20 million won and damages incurred by the non-party 8. The court below held that the above defendant paid damages of 20 billion won and damages incurred by the above judgment on March 9, 2005 and July 29, 2003. The court below held that the non-party mutual savings and finance companies, which were compensated as a result of the above defendant's repayment, 200 billion won + 400 billion won and damages incurred by the plaintiff to the non-party 29 billion won and damages incurred by the above defendant to the non-party 1,500 billion won and damages incurred by the non-party 2.

According to the above legal principles, the rights under Article 37-3 (1) of the former Mutual Savings and Finance Company Act are unique rights recognized to the deposit owner separately from the right to claim damages against an executive officer pursuant to Article 399 of the Commercial Act. Therefore, even if an executive first performed his/her liability pursuant to Article 399 of the Commercial Act for damages incurred to a credit cooperative, the obligation to pay deposits to the deposit owner on the ground of the same act of neglecting his/her duties is extinguished only to the extent of the deposit owner's payment amount, and all of the damages paid by the director are not extinguished within the scope of the deposit amount paid by the director. Thus, it is erroneous that the court below's damages to the non-party Mutual Savings and Finance Company transferred as a result of the payment by the defendant 2 are deducted to the extent that the above defendant bears the deposit payment liability. However, in light of the amount paid by the above defendant to the non-party Mutual Savings and Finance Company as damages, it is not deemed unreasonable in light of the principle of equity, and thus, the court below's decision is justified as alleged in the ground of appeal.

3. As to Defendant 2’s grounds of appeal Nos. 2 and 5

According to the above legal principles, since the rights under Article 37-3 (1) of the former Mutual Savings and Finance Company Act are unique rights recognized to the deposit owner, etc. separate from the right to claim damages against an officer pursuant to Article 399 of the Commercial Act, even though the non-party Mutual Savings and Finance Company filed a lawsuit seeking liability for damages under the Commercial Act against the defendant 2 who is a director and the judgment ordering such damages became final and conclusive, the judgment of the court below does not conflict with the res judicata of the above final and conclusive judgment or do not constitute double claims, and thus, the allegation in the grounds of appeal on

4. As to Defendant 2’s ground of appeal No. 4

Even if Defendant 2 is jointly and severally liable with the non-party mutual savings and finance company, the Plaintiff, who is the trustee in bankruptcy of the non-party mutual savings and finance company at the same time. Thus, the allegation in the grounds of appeal that the Plaintiff, who was jointly and severally liable, and the Plaintiff, the deposit claim in this case, are confused between the Plaintiff and the Plaintiff, and the above Defendant, who was the other joint and several obligors, is exempted

5. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jeon Soo-ahn (Presiding Justice)