2012 Gohap4712 Compensation, etc.

2012 Gohap4729(Joints)

Daegu Color Industrial Complex Management Corporation

1. Kim○-○

2. Transfer;

3.00 acceptances; and

4. Ma○○.

5. ○○○.

6. ○○ Incorporated Company

7. O tag;

December 10, 2013

January 28, 2014

1. The Plaintiff:

A. As to KRW 4,521,936,678 on each of them and KRW 1,558,617,265 on September 1, 2005, KRW 344,758,902 on October 1, 2004, KRW 2,618,560,511 on each of them;

B. From September 1, 2005 to October 1, 2004 to 128,428,025 to 223,596,833 won and to 77,930,863 won among the money stated in the above paragraph (a) above, Defendant ○○○○○ and each of the above paragraph (a) shall be from January 1, 2009 to 128,428,025 won. Defendant ○○○ shall be from January 1, 2009 to 172,068,729 won among the money described in the above paragraph (a) above, and from 7,930,930,930,863 won among these money, from 172,00,000 won to 37,930,930,863 won, from 7,000 won to 17,237,97,941 to 19,70

E. Defendant 00 Co., Ltd.: 344,758,902 of the money stated in the above paragraph (a) and 344,758,902 from October 1, 2004;

F. Defendant ○○○○○, ○○○○, ○○○○○, and ○○○○○○, among the money stated in the above paragraph (a) above, KRW 4,936,980 and its related thereto from January 1, 2009:

By January 28, 2014, 5% per annum and 20% per annum from the following day to the day of full payment.

2. The plaintiff's remaining claims against the defendants are all dismissed.

3. Of the costs of lawsuit, the part arising between the Plaintiff, Defendant Kim ○, ○○○○, and ○○○ Co., Ltd. is assessed against each of the Defendants. 95% of the part arising between the Plaintiff and Defendant ○○○, ○○○, ○○, and ○○○○, among the parts arising between the Plaintiff and the Plaintiff, and

4. Paragraph 1 can be provisionally executed.

Defendant 1 ○○○○○○○○ and ○○○○○○ and ○○○○○○ and ○○○○○○ and ○○○○○ and 1,58,617,265 won from September 1, 2005 to 34,758,91 won from September 1, 2004 to 2,68,560, 511; ② Defendant ○○○○ and ○○○○ and ○○○○○ and ○○○○ and ○○○ and ○○ and ○○ and ○○ 1 and KRW 4,471,936,678, and KRW 1,58,617,265, and KRW 1,54,74,758, and KRW 9 and KRW 1,579,50,000 from among the money stated in the above paragraph; and ③ Defendant 1 and KRW 75,015,00 and KRW 94.

④ Defendant Kim○-○, ○○○, ○○○○, and ○○○○○, each of the money set forth in the above paragraphs, and KRW 148,739,60 from January 1, 2009 to the delivery date of a copy of each of the instant complaint, and KRW 5% per annum from the next day to the day of full payment.

1. Basic facts

A. Status of the parties

The purpose of the Plaintiff is to obtain authorization from the competent authority for the establishment of a Daegu salt industrial complex management agency in around 1980 pursuant to the Industrial Cluster Development and Factory Establishment Act (former Industrial Placement and Factory Establishment Act), and to promote balanced development with the promotion of modernization of enterprises located in Daegu Salt Industrial Complex on January 27, 1981.

From March 30, 1992 to August 24, 2009, Defendant 2: (a) was working as the president of the Plaintiff; (b) was in charge of the affairs of final decision-making and enforcement of major policies concerning the operation of the Corporation, such as personnel affairs, accounts, and funds; and (c) from April 15, 200 to April 6, 2009, Defendant 2 was in charge of waste disposal affairs while working as the auditor’s direct department of the Plaintiff’s president; and (d) from April 15, 200 to March 15, 2000 to March 20, 2005, the head of the Plaintiff’s planning and management office; and (e) from March 21, 2005 to August 24, 2009 to the head of the Plaintiff’s water quality management team from March 20, 2005 to the head of the Plaintiff’s 205.

B. Embezzlement, breach of trust, etc. by Defendant ○○○○○ (hereinafter “instant embezzlement and breach of trust”)

(1) Embezzlements through the method of paying false flexible coal transportation expenses (hereinafter referred to as "Embezzlements, such as the development of ○) with regard to chemical development, etc.

(A) Slurgs (in the process of fibering and dyeing the fiber discharged from the Slurgic Authority) and slurgs are different from each other, and in the case of sludge, the freight vehicles that transport flexible coal and the freight vehicles that transport sludge are wastes are clearly divided. On the other hand, ○○ Development, ○○ Enterprise, Large○ Environment, and ○○ Environment, and four enterprises that are more than 4 enterprises that are the wastes (hereinafter referred to as “○ization development, etc.”) are Slurgs, but they are transportation enterprises.

(B) Around January 2001, Defendant 1: (a) at the Plaintiff’s office; (b) without transporting the Plaintiff’s flexible coal, Defendant 2: (b) provided related documents as if he transported the Plaintiff’s flexible coal; and (c) ordered Defendant 2 to create the funds as if he transported the smoke coal; (d) Defendant 3 to the four representatives, such as ○○○○ Development’s sulfur, refund 10% of the value-added tax on the transportation cost to the four representatives, such as ○○○○○; (c) requested the cooperation of raising the funds; (d) the representatives, such as ○○○○○○○○○○, requested 5% of the transportation cost to the Plaintiff’s office; (e) 24,819,187 KRW 5,00; (e) from 60,000 to 50,000; and (e) 1, 207 KRW 750,000,000; and (e) Defendant ○○○○○, etc.

(2) Embezzlements through excessive appropriation of flexible coal transportation expenses against Defendant ○○ (hereinafter “○○ Embezzlement”)

Around December 2001, Defendant ○○○○○○○○○, a person in charge of the Plaintiff’s flexible coal tallying, ordered the Plaintiff’s office to set up a non-fund by appropriating the excessive amount of fluoral fluoral fluoral fluor’s fluoral fluoral fluorial transport by Defendant ○○○○○○○○, a person in charge of the Plaintiff’s flexible coal tallying, to Defendant ○○○○○, the actual owner of the Plaintiff’s office (the foregoing company was in charge of the Plaintiff’s business of transporting the Plaintiff’s wastes; hereinafter “Defendant ○○”). Defendant ○○ issued an order on November 2001 to set up a non-fund by appropriating the fluoral fluoral fluoral fluoral fluoral fluoral fluor’s actual transport volume of the Defendant ○○○○○.

Defendant 00, ○○○○, and ○○○’s approval in succession, followed the Plaintiff’s funds to be deposited in the passbook in the name of Defendant ○○○, and thereafter, from around that time to around September 2004, the Plaintiff deposited KRW 344,758,90 on 34 occasions through the same method, and deposited KRW 344,758,90 into the passbook in the name of Defendant 00. Around that time, the Plaintiff voluntarily consumed the Plaintiff’s funds in the name of the head of Si/Gu in Daegu City.

(3) Embezzlements through an excessive appropriation of flexible transportation expenses to the KOGTT TU TUT 00 (hereinafter referred to as “TG 00 embezzlement”).

Around October 2001, Defendant 1, 200, Co., Ltd. (hereinafter “○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ KRW 6616166.).

(4) Embezzlements through excessive appropriation of the Plaintiff’s expressway tolls (hereinafter “Embezzlements”)

Defendant 1: (a) at the Plaintiff’s office around February 2001, Defendant 1: (b) instructed the head of the Plaintiff’s water quality headquarters to make a document by releasing the cost of toll on an expressway; (c) in accordance with the Plaintiff’s order, Defendant 1: (a) instructed the head of the Plaintiff’s water quality headquarters to grant approval; and (d) Defendant 1: (a) in January 2001, Defendant 200 to make a false application by making an accounting operation as if the expressway toll amounted to KRW 1,356 KRW 9,102,50; (b) around 1, 200 (from January 1, 2006, Defendant 200, Defendant 1; (b) voluntarily withdrawn KRW 3,624,90, which was appropriated for paying tolls in sequence; and (c) Defendant 28,280,000 from Defendant 1’s funds to the Corporation; and (d) voluntarily withdrawn from Defendant 28,2008.

(5) Breach of trust through the sale of low-price cargo owned by the Plaintiff (hereinafter “Misappropriation of trust by selling low-price cargo”)

Defendant ○○ has a duty to investigate the market price at a reasonable and reasonable level taking into account the period of use of the vehicle, the remaining depreciation rate, etc. of the vehicle when selling the vehicle owned by the Plaintiff, evaluate the reasonable price, sell it through a competitive bid, and prevent the Plaintiff from incurring any property loss.

Nevertheless, around September 2003, Defendant Jong-○ sold 1,50,00 won at the Plaintiff’s office in collusion with Defendant KimOO and 11 ton of Daegu 90Da1567 held by the Plaintiff, and in violation of the above occupational duties, Defendant Kim Jong-○ violated the above occupational duties and thereby, Defendant Kim Jong-○ sold 3,850,000 won at a price considerably lower than the appropriate market price of the above vehicle without any price survey while allowing OO to buy the bid at the highest price in advance. The above ○○, Defendant ○○, and Defendant ○○-○○, by allowing the Plaintiff to obtain property benefits in the amount of the above ○○ enterprise and causing property damage in the amount of the above 21 to the Plaintiff at the same time between December 208 and December 30, 2008.

(6) Criminal punishment, etc. against the Defendants

On November 19, 2012, Defendant ○○○○ was sentenced to two years and six months of imprisonment at the Daegu High Court on the grounds of the facts constituting an offense, etc. set forth in paragraphs (1) through (5) above, and the said judgment became final and conclusive on February 14, 2013. Meanwhile, Defendant ○○, ○○○, and ○○○○ was subject to a disposition of suspension of indictment on the above facts constituting an offense. Defendant ○○○, ○○, and ○○○ was subject to a disposition of suspension of indictment on the foregoing facts. The Plaintiff’s articles of incorporation relating to the instant case is subject to an interim resolution as follows.

Article 21 (Duties of Officers) (1) The president shall be the representative of the Corporation, and shall have the authority to supervise the executive affairs of the executive organ with respect to the matters resolved by the general meeting and the board of directors as the president. (2) The directors shall assist the president and act on behalf of the president in the order of extension of the notice of the president.(3) The president shall exercise the overall control over the execution affairs of the Corporation and shall be responsible for the execution affairs.(4) The directors shall organize the board of directors and shall deliberate and decide matters prescribed by the articles of incorporation of the Corporation.The officers shall comply with the

Defendant 00 acceptance, allocation00, attitudes, and OO tag were the executive officers of the Plaintiff) and the executive officers of various kinds of articles, etc. (hereinafter referred to as “instant articles, etc.”) provided for the act of breach of trust or embezzlement as the executive officers of the Plaintiff. In approving the instant articles, etc., the said Defendants: (a) were illegal; (b) the contents of the instant articles, etc., which are approved by them are different from the actual facts; (c) were unlawful; and (d) were aware or could have easily known that they would cause damage to the Plaintiff Corporation by their approval; (d) they were aware or could have known that they would cause damage to the Plaintiff, the Defendant’s definition or request, which is the chief director at the time, was approved only without any specific measure.

[Reasons for Recognition] Unsatisfy, Gap in the case of 2012Gahap4712 prior to the consolidation, described in subparagraphs 1 through 7, 33, 37 through 39, 48, 49, 53, 57, 57, 58, 64, 66, 67, 68, Eul's evidence 9, Eul's evidence 1 through 3, Eul in the case of 2012Gahap4729 or evidence 1-5 through 7, the purport of the whole pleadings,

2. The plaintiff's ground for claim

A. Defendant ○○○○ was sentenced to imprisonment of two years and six months at the Daegu High Court due to the facts stated in paragraphs (1) through (5) of the above 1.B, and the above judgment became final and conclusive. Defendant Kim○○, upon the instruction of Defendant ○○○○○○○○, participated in the above embezzlement and breach of trust. Meanwhile, Defendant 00, 00, 00, 00, 00, 00, and ○○○○○ was committed an illegal act by Defendant ○○○○’s act, even though he was aware of the embezzlement and breach of trust by Defendant ○○○○○○○○’s ○○○○○○○, and Defendant ○○ was the other party to the embezzlement as stated in paragraphs (1) through (5) of the above 1.B., the Defendants are liable for compensation for damages inflicted on the Plaintiff as a joint tortfeasor.

B. Even if it is not so, the remaining defendants except the defendant ○○○, Kim○, and ○○ are all directors or employees of the plaintiff who violated the articles of incorporation by intention or negligence, and thus, they should be held liable under the Commercial Act. Meanwhile, the above defendants' violation of the duty of care as an officer or employee of the plaintiff, and thus, they should be held liable for non-performance.

3. Determination

A. Determination on the claim against Defendant Kim-○, ○○○, and ○○

(1) According to the facts acknowledged before the occurrence and scope of liability for damages caused by a tort, Defendant Lee Jong-young, as the president of the Plaintiff, committed embezzlement or breach of trust as referred to in paragraphs (1) through (5) of 1.B. Defendant Kim Jong-○, as the member of the audit team, under the direct control of the above president, mainly drafted documents such as a product inspection report and articles related to the above embezzlement or breach of trust, a written request for an expenditure resolution, and a waste transport vehicle sales bill, and obtained approval from Defendant ○○, ○○, ○, ○○, ○, ○○, ○○, and 00 votes. Defendant Kim Jong-○, as the representative of the above company, did not actually transport flexible coal to the Plaintiff, even if he did not request the submission of a written request for payment and a tax invoice as if he transported flexible coal, it is recognized that the above embezzlement or breach of trust was committed in collusion with the Plaintiff, and that Defendant Kim Jong-○ was liable to deposit the above amount in the name of each of the above Defendants 10 and 20.

Furthermore, the total amount of each embezzlement and breach of trust will be the amount of damages in the case of a tort in the health room, 1.B.(1) through (4).

On the other hand, the specific amount of damages incurred by the Plaintiff-owned cargo 1.B.(5)’s act of selling at low-price cargo 1.B. The final and conclusive criminal judgment also recognized the amount of damages as the “amount equivalent” in the final and conclusive criminal judgment. The evidence submitted by the Plaintiff alone lacks to acknowledge the adequate market price at the time of selling the Plaintiff-owned cargo 1. Furthermore, there is no other evidence to acknowledge it. Furthermore, the aforementioned adequate market price should be determined after examining the actual status and maximum working age of each cargo vehicle, and the transaction price in the case of the difference between the cargo 1.B., it is difficult to ascertain the actual condition and the current status of each cargo 1.B., and it is deemed difficult to prove the appropriate market price because it is difficult to ascertain the actual condition and the current status of each cargo 1.2. Ultimately, the specific amount of damages cannot be determined by the court in light of all the overall circumstances. In light of the various circumstances revealed in the pleadings in the instant case, the amount of damages should be determined at the court.

(2) Whether the statute of limitations expired

Defendant ○○○○, Kim○, and ○○○ filed a claim for damages within three years from the date on which the Plaintiff became aware of the tort. The Plaintiff had already become aware of the tort committed by the said Defendants and requested an investigation into the Defendants around 2005, and filed a complaint through civil solidarity around August 2009. Thus, the said Defendants’ tort was known at least in 2005. The instant claim for damages filed after the said three years had already expired, and even if not, the said claim for damages had already been filed after the said ten years had already expired since the statute of limitations had already expired in relation to the portion of the tort committed before the said period.

The starting point of the short-term extinctive prescription of a claim for damages due to an illegal act is from the "date on which the victim becomes aware of the damage and the perpetrator, and in the case of a corporation, the date on which the representative becomes aware of the damage and the perpetrator is ordinarily known. However, in case where the representative of a corporation commits a tort against a corporation, the profit of the corporation and the representative of the corporation is contradictory to the profit of the representative, so it is difficult to expect the representative to exercise the right to claim damages therefrom, and the representative of the corporation is generally denied the right of representation. Therefore, it is insufficient for the representative of the corporation to recognize the damage and the perpetrator. Therefore, in the above case, the short-term extinctive prescription has run only when the representative, executive, employee, or employee who has the authority to properly preserve the profit of the corporation at least when he knows it to the extent that the right to claim damages can be exercised, and if the executive, etc. jointly with the representative of the corporation, the starting point of

In light of the above legal principles, the short-term extinctive prescription of a tort shall not be deemed to have run until August 24, 2009, when Defendant ○○○○ was dismissed from office as president on August 24, 2009, and on the same day he was appointed to office as president. In light of the above legal principles, it is clear in the record that the lawsuit in this case was filed on May 2, 2012, before three years have passed from the above, since the Plaintiff’s short-term extinctive prescription of the above Defendants was dismissed from office as president on August 16, 2010, and Defendant ○○○○○ was dismissed from office as president on the same day, and Defendant ○○○○○ was not dismissed from office as president, and Defendant ○○○○○ was not dismissed from office until August 24, 2009. According to each of the above legal principles, the Plaintiff’s assertion that the above Defendants’ short-term extinctive prescription of the said Defendants’ short-term extinctive prescription of the Defendant 1010.

(3) Whether liability has been limited

Furthermore, even if the Defendants are recognized as liable for damages, the Defendants asserts that the Defendants’ liability should be limited to a portion that accords with the principle of equity, in light of the following: (a) the Defendants contributed significantly to the development of the Plaintiff and the regional economy; and (b) the Plaintiff’s management and supervision and the c

On the other hand, if a victim's negligence is recognized in a lawsuit claiming damages, the court shall take such factors into account in determining the liability and amount of the damages. Even if a person liable for damages does not assert the victim's negligence, the court shall ex officio examine it in the case where the victim's negligence is recognized by the litigation materials. However, it is not permissible for a person who intentionally committed a tort by using the victim's care to claim for the reduction of his/her liability on the ground of the victim's negligence (see, e.g., Supreme Court Decision 99Da50538, Jan. 21, 200). In particular, if such intentional tort constitutes an zero act, if the limitation on liability such as offsetting negligence is recognized, the perpetrator ultimately possesses profits from the tort, thereby bringing about a result contrary to the principle of fairness or good faith, and thus, it shall not be allowed to limit liability such as offsetting negligence (see, e.g., Supreme Court Decision 2006Da16758, Oct. 25, 2007).

Therefore, even if the negligence was partially recognized due to the plaintiff's management and supervision and the response to cage, etc. in the course of the embezzlement and misappropriation of this case, the defendants who committed the act of embezzlement and misappropriation, which is an intentional tort, cannot limit their liability. Therefore, the defendants' assertion on a different premise is without merit.

(4) The theory of lawsuit

Therefore, Defendant ○○○○ and ○○○○○○ and ○○○○” have the duty of 4,521,936,678 won for each Plaintiff (i.e., embezzlement 1,58,617,265 won + KRW 344,758,902 + KRW 2,323,278,591 + 245,281,920 for embezzlement of tolls 245,281,920 + KRW 50,000 for sale by low freight vehicles) and the duty of 1,58,617,265 won for each of the above 20.4% from September 1, 2005 to 1, 344,750, 208, 201, 304, 405, 196, 201, 405, 267, 197, 2015.

B. Determination on the claim against Defendant ○○○○, ○○○, ○○○○, and ○○○○○

(1) The establishment of liability and its grounds

(A) The Plaintiff also sought liability for damages against the said Defendants based on tort and the Commercial Act.

However, as long as the Plaintiff is not a stock company, the Plaintiff’s assertion based on the Commercial Act is not acceptable, since there is no room for application of the Commercial Act.

In addition, according to the evidence above, the above defendants successively approved each of the documents of approval proposed by the defendant Kim ○○, and the above approval shall be confirmed by the above defendants with the deliberation of the decision of approval, and the defendant's decision shall be held responsible for all of the defendant's decision, and the defendant's decision shall be given more than the officer of the Damho Corporation, when the contents of the above approval documents are falsely or excessively appropriated, it is recognized that the defendant's decision was made by recognizing or doubtful the fact that the contents of the above approval documents are raising funds through this, and it is recognized that the above approval was made by the defendant's decision.

However, in full view of the following facts: (a) the above Defendants were the directors or employees employed by the Plaintiff, who had been holding the former authority at the time, and were subjected to approval by the Defendant’s justice order, which was inevitable; (b) the said Defendants raised an objection against the abnormal approving authority at the time to Defendant ○○○○; (c) sought confirmation; and (d) refused approval; and (c) the Plaintiff appears to have been unable to refuse to follow the direction of Defendant ○○○○, who had been holding the former authority at the time; and (d) the evidence submitted by the Plaintiff alone was insufficient to recognize that the Defendants participated in each of the instant embezzlement and breach of trust in collusion with Defendant ○○ and ○○○○○, or approved the said approval document in order to assist the Defendants. Accordingly, the Plaintiff’s assertion based on the Plaintiff’s tort is not acceptable.

(B) However, according to the facts acknowledged above, since Defendant ○○○○, ○○○, ○○○, ○○○○, and ○○○○○○○, all of the Plaintiff’s executives have been negligent in performing their duties in good faith, and thereby obtaining approval on the approval column for each of the instant written approval documents, this is recognized as an executive or employee of the Plaintiff, and the Plaintiff’s failure to perform his/her duties properly, and each of the damages suffered by the Plaintiff is in proximate causal relation with the nonperformance by the said Defendants, the said Defendants are liable to compensate for each

(2) Scope of liability for damages

(A) Damages

The amount of damages caused by the Defendants’ breach of duty of care is the amount of damages (specifically, see the following table) of each of the above Defendants among the embezzlement and distribution of each of the above Defendants.

A person shall be appointed.

(B) According to the evidence prior to the limitation on the scope of liability, in the case of the above Defendants, the above Defendants were inevitably approved by the Defendants under the unilateral order of justice of the Defendant, who was employed by the Plaintiff as the president at the time of the above Defendants, and the above Defendants could not have been able to refuse approval against the above Defendant ○○○○○’s order. Nevertheless, the above Defendants resisted to the above Defendants, and they expressed to the purport that “the Defendant ○○○○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○.

(3) Sub-decisions

Then, Defendant ○○○○○○○○○ and each of the above ○○○○○○○○○ and ○○○○○○○○○○ and KRW 4,521,936,678, as to KRW 223,596,83 (hereinafter the original unit; hereinafter the same shall apply) and KRW 7,930,863, as to KRW 17,97,237,945, as to KRW 128,428,026, from September 1, 2004; KRW 128,428,026, KRW 169, KRW 29, KRW 29, KRW 79, KRW 179, KRW 29, KRW 79, KRW 172,978, KRW 1729, KRW 678, KRW 979, KRW 197, KRW 1975, KRW 279, KRW 1975, KRW 279, KRW 1975.

4. Conclusion

Therefore, the plaintiff's claim against the defendants is justified within the scope of each of the above recognition, and the remainder is dismissed as it is without merit. It is so decided as per Disposition.

The presiding judge, judge and auditor;

Judges Dohjin-jin

Judges Kim Gin-hee