Plaintiff Co., Ltd. (Law Firm Haak, Attorneys Jeong Jin-jin et al., Counsel for the plaintiff-appellant)

Korea

August 12, 2009

Seoul Central District Court Decision 2008Gahap17422 Decided November 11, 2008

All appeals filed by both the plaintiff and the defendant are dismissed.

Expenses for appeal shall be borne individually by each person.

Purport of claim

The defendant shall pay to the plaintiff 4,285,484,393 won with 20% interest per annum from the day after the delivery of a copy of the complaint to the day of complete payment.

Purport of appeal

Of the judgment of the court of first instance, the part against the plaintiff seeking additional payment is revoked. The defendant shall pay to the plaintiff 2,142,742,197 won with 20% interest per annum from the day after the delivery of a copy of the complaint of this case to the day of complete payment.

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

1. Basic facts

【In the absence of any dispute, Gap 1-5 evidence, 7-10 evidence, 2-4 evidence (including each number, if any), and the purport of the whole pleadings

A. The plaintiff's deposit and transfer of bonds

(1) On August 26, 2003, the Plaintiff and the non-party 1 corporation deposited the repayment amount of KRW 4,200,000 (hereinafter “instant deposit”) with the Gwangju District Court 2003Hun-Ma529,529, which made the non-party 2 corporation as the principal deposit (hereinafter “the instant deposit”) as the principal deposit.

(2) On the other hand, the non-party 1 corporation transferred the right to claim the recovery of deposit money of this case to the plaintiff on the same day, and notified the defendant (the deposit officer of the Gwangju District Court) of the assignment of the assignment, and delivered the notification to the defendant on September 1, 2003. On July 29, 2004, the notification was delivered to the defendant on August 2, 2004 by again notifying the defendant of the same assignment of assignment.

(3) The notice of the assignment of each of the above claims was written on the deposit case record of the instant deposit.

B. The process of withdrawing the instant deposit

(1) Nonparty 3, 5, 6, 7, and 8, etc., known the fact of the deposit of this case and conspired to acquire the deposit of this case with the intention of using it as the depositer. Nonparty 5, etc., upon the request of deposit collection, forged the Plaintiff’s resident registration certificate of Nonparty 10, the representative director of Nonparty 1 corporation, by attaching Nonparty 6’s photograph to Nonparty 6, etc. Nonparty 7’s photograph, etc., and transferred it to Nonparty 3. Nonparty 8 obtained the forged resident registration certificate of Nonparty 9 and 10 from Nonparty 3, using the above resident registration certificate of Nonparty 9 and 10 to Nonparty 3 with the above resident registration certificate of Nonparty 6’s personal seal impression issued from Nonparty 3, and Nonparty 6 replaced the Plaintiff’s new certificate of personal seal impression issued by Nonparty 1 and Nonparty 6’s new certificate of personal seal impression issued by Nonparty 6 to Nonparty 7, etc. with the name of Nonparty 1 corporation which was the representative director of Nonparty 1 corporation.

(2) At around 11:00 on November 5, 200, Nonparty 7 and Nonparty 6 found at the office of Nonparty 4 certified judicial scrivener located in Geumcheon-gu, Dong-gu, Seoul. Nonparty 7, as if the Plaintiff’s representative director was Nonparty 10, Nonparty 6 requested Nonparty 4 to collect deposit money, and Nonparty 4 requested Nonparty 9, the representative director of Nonparty 1 corporation, and Nonparty 4 to present each forged resident registration certificate with Nonparty 9 and Nonparty 10. The Plaintiff and Nonparty 1 corporation’s respective certificates of personal seal impression, each of which were arbitrarily created, were issued with the corporate seal impression in the name of the Plaintiff and Nonparty 1 corporation, and each of which were issued to Nonparty 1 and Nonparty 1 corporation’s respective certificates of personal seal impression 12 and Nonparty 12, each of which was forged with documents for deposit guarantor’s certificate, and each of which was owned by Nonparty 11,000 and 4,000 m254 m27 m264 m25 m27.

(3) After reviewing the documents submitted as above, Nonparty 4 prepared a joint request for the recovery of deposit money under the name of the Plaintiff and Nonparty 1 corporation, and submitted them to Nonparty 14 who is in charge of the collection of deposit money belonging to the above court at around 15:00 on the same day, along with the documents submitted. Nonparty 14 examined the documents submitted by the above deposit office at around 16:00 on the same day, and then issued a written authorization for the collection of deposit money to Nonparty 4. Nonparty 3, etc. received from Nonparty 4 the written authorization for the collection of deposit money from the branch office of the court interesting bank at the above court interesting bank at KRW 4,285,484,393 on the same day.

2. Judgment on the ground of the Plaintiff’s claim

A. Determination as to a claim for damages on the ground that an examination of the letter of guarantee in lieu of the deposit certificate and the attached documents was neglected

First of all, Nonparty 6 and 7 did not submit a deposit certificate pursuant to Article 38(1) of the former Rules on the Management of Deposit Affairs (amended by Supreme Court Regulation No. 1957 of September 21, 2005) on the ground that they lost the deposit certificate, and collected the deposit money based on the deposit guarantor's guarantee. Considering that the deposit amount of KRW 4,200,000 is higher than the deposit amount of KRW 4,200,00,00, and that the deposit amount of KRW 2,00,000 was the same as the Seoul Yeongdeungpo-gu Seoul Metropolitan Government, which was irrelevant to their address on the register of real estate register, was the 2,02, Dongsan-gu and the Mapo-gu, Seoul Mapo-gu, which were the deposit public official belonging to the defendant, the deposit principal, and whether the deposit amount was properly issued under the name of Nonparty 11 and 12, the deposit guarantor, and whether Nonparty 1 and 12 were responsible to recover the deposit amount of this case directly or by negligence.

A deposit official shall examine not only the procedural requirements for a deposit application or a claim for payment, but also the requirements such as the validity of the deposit, whether the claimant is the claimant under the substantive law. However, the method of examination shall be based on the formal review principle based on the deposit documents or a written request for payment, which is stipulated in the relevant Acts and subordinate statutes. At the time when the collection of the deposit of this case is authorized, Nonparty 14, who is the deposit official, is sufficient to examine the procedural and substantive requirements of the guarantee in accordance with the respective certificates of personal seal impression in the names of Nonparty 11 and 12 and the written copy of each real estate register, which are the attached documents for the request for deposit payment, and it cannot be deemed that there is a duty of due care to verify the authenticity of each of the above certificates of personal seal impression or the financial ability of the deposit guarantor as alleged

(b) The scope of the negligence of the deposit officer and the damages acknowledged as proximate causal relationship;

(1) The Plaintiff stated in the deposit case record that Nonparty 1 transferred the right to claim the deposit money to the Defendant to the Plaintiff. In such a case, the deposit public official cannot be deemed to have been deposited with Nonparty 1 corporation, and even though he had a duty of care not to authorize the deposit collection before he was issued a certificate of transfer, which proves that the right to claim the deposit money has been transferred to the Plaintiff, the transferee of the right to claim the deposit money from Nonparty 1 corporation. However, Nonparty 14, a deposit public official belonging to the Defendant, violated his duty of care, and thereby, did not recover the full amount of the deposit money to the Plaintiff and Nonparty 1 corporation. The Plaintiff, the holder of the right to claim the deposit money, could not recover KRW 4,285,484,393 due to Nonparty 1’s negligence, and thus, the Defendant is liable to compensate the Plaintiff for the said deposit money and the damages for delay.

(2) According to the facts of recognition, it is recognized that Nonparty 1, one of the co-depositors of the instant deposit, has already transferred the right to claim the recovery of deposit money to the Plaintiff two times before committing the crime of defraudation by Nonparty 3, etc., and notified the Defendant of the transfer and provided each notification to the Defendant with all the indication on the deposit case record of the instant deposit.

Even if the deposit officer has the formal right to review only two times, insofar as the purport of the notification of the transfer of claim was clearly stated in the records of the deposit case, as long as the public official Nonparty 14 belonging to the defendant, who should determine whether to recover the deposit of this case, can be immediately confirmed by the record of the deposit case itself that the plaintiff has the right to claim recovery of the total amount of the deposit of this case. Thus, Nonparty 14, who did not have any right to claim recovery of the deposit of this case at the time of the deposit collection claim, was negligent in performing his duties as the deposit official when authorizing the recovery of the deposit of the non-party 1 corporation as to the part of the claim for recovery of the deposit of this case (the defendant is entitled to claim recovery of the total amount of deposit of this case as the plaintiff entitled to claim recovery of the deposit of this case while submitting the certificate of claim for recovery of the deposit of this case. However, the defendant's relative claim for withdrawal of the transfer of claim without submitting the certificate of claim transfer, cancellation of the contract related to the transfer of claim, and withdrawal of the claim can not be viewed as the deposit.

However, if the deposit is subject to a disposition to authorize the deposit collection of the deposit officer and the deposit is collected accordingly, even if the person who recovered the deposit is not the person who actually claims the deposit, the deposit procedure under the deposit law has been terminated (see Supreme Court Decision 91Da39429, Jul. 13, 1993). Thus, the defendant is liable for damages caused by the failure of the plaintiff who is the true right to claim the deposit collection due to the negligence of the public official affiliated with the defendant as to the claim for the deposit collection of the non-party 1 corporation, for which no right to claim the deposit is available due to the

(3) Furthermore, in case where only one of the joint depositors claims for the recovery of the deposit in two joint deposits, the deposit official does not know the share ratio, etc. in the internal relationship between the depositors, and thus, it shall not authorize the recovery of 1/2 of the deposit to one of the joint depositors. If the non-party 14, who is the deposit official belonging to the defendant, demanded a document proving the transfer of the deposit to the plaintiff and did not receive the document, the claim for recovery of the deposit of this case is the claim for recovery of only one of the joint depositors. Thus, the non-party 14, who is the deposit official, should not authorize the recovery of 1/2 of the deposit amount. Thus, the deposit official, the deposit official, as well as the non-party 14, who is the deposit official, is negligent in performing his duties as the deposit official.

The plaintiff and the non-party 1 corporation already transferred to the plaintiff the right to claim the deposit money under the joint name of the plaintiff and the non-party 1 corporation as alleged by the plaintiff. Thus, the right to claim the deposit money under the name of the non-party 1 corporation is no longer effective. If the plaintiff did not submit a document evidencing the transfer of the claim to the deposit public official, the right to claim the deposit money of this case shall be deemed only one of the joint depositors, and

In addition, in the case of two joint deposits, the portion deposited by the joint depositors can be presumed to be deposited by the depositors in the same proportion, except in extenuating circumstances, but the deposit official cannot know the proportion of the funds in the internal relationship between the depositors. Thus, unless the two depositors jointly request the recovery, the deposit official should not authorize the recovery even if one person such as the depositor claimed the recovery of 1/2 of the deposit.

However, if the public official as seen earlier transferred the deposit money to the Plaintiff and the non-party 1 corporation and the non-party 2 corporation, it cannot be deemed that there was negligence on the deposit official. Thus, if it is assumed that the non-party 14, who is the deposit official, filed a claim for the recovery of deposit money without misrepresenting the Plaintiff as seen in this case, the non-party 14, who is the deposit official, did not recover one half of the deposit money according to the Plaintiff’s claim for recovery of deposit money, the reason for deposit in this case can not be seen as 4,20,000 won to the non-party 15 corporation under the joint guarantee of the non-party 1 corporation, and the non-party 20,000 won, which was the above 20,000 won, were to be returned to the Plaintiff and the non-party 20,000 won, which were the above 20,000,000 won, which were the above 20,000,000 won, 200.

(4) Based on such determination, if the Defendant calculates the amount of damages to be compensated by the Defendant, the Plaintiff and Nonparty 1 corporation’s share in the right to claim the deposit of this case shall be deemed to be 1/2, respectively. Accordingly, the Defendant, who is a public official belonging to the Defendant, shall be liable to compensate for the damages incurred by the Plaintiff due to Nonparty 14’s negligence, 2,142,742,196, and damages for delay.

3. Judgment on the defendant's assertion

A. Determination on the statute of limitations defense

The defendant, on January 13, 2005, was issued by the non-party 16 officer of the Gwangju District Court issued a confirmation that the deposit of this case was recovered due to forgery. Thus, the defendant recognized the damage and the perpetrator due to the withdrawal of the deposit of this case at that time. Thus, as long as the lawsuit of this case was filed on February 25, 2008, the plaintiff's right to claim damages against the defendant was extinguished by prescription.

Article 766(1) of the Civil Act, which provides the starting point of the short-term extinctive prescription of a claim for damages due to a tort, "date on which the injured party becomes aware of the damage and the perpetrator" means the time when the injured party has actually and specifically recognized the facts requiring the tort, such as the occurrence of the damage, the existence of the illegal harmful act, and proximate causal relation between the harmful act and the occurrence of the damage. Whether the injured party, etc. is deemed to have actually and specifically recognized the facts requiring the tort should be reasonably recognized in consideration of various objective circumstances in individual cases and situations in which the claim for damages is practically possible (see, e.g., Supreme Court Decisions 90Da8152, Mar. 22, 1991; 2006Da30440, Apr. 24, 2008). The injured party, who is the right holder, has the burden of proving the subjective attitude of the injured party, i.e., the time when the injured party becomes aware of the damages (see Supreme Court Decision 2005Da3139395, Oct. 27, 27, 2006)

In light of the above legal principles, it is insufficient for the Plaintiff to accept the instant deposit money by forging the relevant documents and receive it from the Defendant, and it is also possible to exercise the Defendant’s right to claim the State compensation only when the deposited public official neglected his duty of care required to perform the duty of care to recover the deposit and thereby authorizing the recovery of the deposit money. In full view of the purport of the pleading in the statement No. 1, it can be recognized that the Plaintiff was proved by forging the relevant documents from Nonparty 16 of the Gwangju District Court on January 13, 2005 by a third party on November 5, 2004. However, this fact alone does not necessarily mean that the Plaintiff was aware of the fact that the Plaintiff paid the deposit money from the deposited public official Nonparty 14 at the time due to his negligence in performing the duty of care required to recover the deposit money, and there is no other evidence to acknowledge the fact that the Plaintiff was within three years after the filing date of the instant lawsuit, and there is no reason for the Defendant’s defense of extinctive prescription.

B. Determination as to the assertion of expression representation

The defendant asserts that, inasmuch as the non-party 4 certified judicial scrivener, who is the agent of the non-party 1 corporation with the external appearance that seems to be a legitimate right holder with regard to 1/2 of the claim for the recovery of deposit money of this case, filed a claim for the recovery of deposit money with all necessary documents, the non-party 14, who is the deposit official belonging to the defendant, believed that the non-party 1 corporation was authorized to act on behalf of the non-party 4 certified judicial scrivener, and there was a justifiable reason for reliance, it shall be deemed that the representative of the non-party 1 corporation has received 1/2 of the deposit money of this case properly, and thus,

However, in order to claim an expression as an agent under Article 126 of the Civil Code, an expression agent must have the right to act on behalf of the principal. However, as seen earlier, Nonparty 1 corporation, the principal, transferred the right to recover the instant deposit to the Plaintiff and did not have any right to act on behalf of the principal. Therefore, the Plaintiff’s above assertion is without merit without any need to examine

4. Conclusion

Therefore, the defendant is obligated to pay to the plaintiff the amount of KRW 2,142,742,196, which is equivalent to 1/2 of the deposit money of this case, as well as damages for delay calculated at the rate of 5% per annum under the Civil Act and 20% per annum under the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the following day of November 11, 2008, which is the date following the delivery of a copy of the complaint of this case, to the plaintiff from March 22, 2008, which is the day following the delivery of a copy of the complaint of this case, to the plaintiff. Thus, the plaintiff's claim shall be accepted within the above recognition scope, and the remaining claims shall be dismissed for reasons for the above recognition, and the judgment of the court of first instance is legitimate, and all of the defendant's appeal shall be dismissed. It is so decided as per Disposition by the assent.

Judges Choi Sung-sung (Presiding Judge)