In a case where Gap set up a stock transaction account at Eul's securities company's branch, Gap's e-mail was defective in attempted transactions through the above account, and Eul filed an order to pay the outstanding amount against Eul, the case holding that the judgment below erred in the misapprehension of legal principles as to the granting of the power of representation on the ground that Gap's opening of the above account was done by Byung and it was deemed that Byung traded shares by using the above account and it was done by Byung. Thus, it is reasonable to view Eul's opening of the above account as granting the comprehensive power of attorney to Byung to sell shares through the above account.

Article 114 of the Civil Act

[Judgment of the court below]

Substitute Securities Co., Ltd. (Attorney Kim Chang-jin, Counsel for defendant-appellant)

Seoul Central District Court Decision 2010Na32312 Decided May 26, 2011

The judgment of the court below is reversed, and the case is remanded to the Seoul Central District Court Panel Division.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

According to the reasoning of the judgment below, since the plaintiff was found to have opened an account for stock transaction (hereinafter "the account of this case") on March 28, 2007 by finding an electronic bank branch of the defendant on March 28, 2007. Since 890 shares were purchased on April 17, 2007 through the account of this case and the outstanding amount of KRW 36,274,435 was generated from the account of this case (hereinafter "the purchase transaction of this case"), the court below rejected the plaintiff's request from the defendant for sale of the above shares at 14,805,60 won or no more than 21,825,796 won from the defendant's request for sale of shares. The court below determined that the plaintiff's order for sale of shares was valid for the plaintiff's non-party 1 to seek payment of the outstanding amount after receiving the above order for sale of shares from the defendant's agent's request from the Seoul Central District Court No. 2007Hu13295, Feb. 28, 20007.

However, according to the records, while opening the instant account, the Plaintiff entered “(Carrying phone number omitted)” in the mobile phone column of Nonparty 1’s mobile phone, and obtained a securities card from the Defendant. Nonparty 1 transferred KRW 1 million from Nonparty 2’s national bank account to the instant account on the date of opening the instant account, and then transferred KRW 1 million from April 3, 2007 to April 5, 2007, KRW 10 million, and KRW 8 million to the instant account by the Plaintiff’s transfer of KRW 30,130,000 in total, and KRW 1.3 million from April 3, 2007, the Plaintiff did not know the Plaintiff’s purchase and sale of the instant shares to purchase and sell the instant account by using Nonparty 1’s order to purchase and sell the instant shares, and the Plaintiff did not know the Plaintiff’s purchase and sale of the instant shares to the Plaintiff’s account by using Nonparty 1’s order to purchase and sell the instant shares.

Considering that the testimony of Non-Party 1 by the witness of the first instance court, which was discovered in cleaning the plaintiff's room in addition to the above facts, appears to be without credibility, the plaintiff's opening of the account of this case was aimed at enabling the non-party 1, who is the plaintiff, to make a stock transaction using the account of this case, and accordingly, it seems that Non-Party 1 made a stock transaction. Thus, it is highly likely that the plaintiff granted the comprehensive power of attorney to make a stock transaction using the account of this case to the non-party 1.

Nevertheless, the lower court erred by misapprehending the legal doctrine regarding granting power of representation, violating logical and empirical rules, and exceeding the bounds of the principle of free evaluation of evidence, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal assigning this error is with merit.

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jeon Soo-ahn (Presiding Justice)