2013 Gohap 12801 Compensation

A Stock Company

1. B

2. C.

May 14, 2014

May 28, 2014

1. The Plaintiff shall pay to the Plaintiff the amount of KRW 144,288,280 as well as 20% interest per annum from August 1, 2013 to the date of full payment; Defendant C shall pay the amount of KRW 27,053,540 as well as 5% interest per annum from August 14, 2013 to May 28, 2014; and the amount of 20% interest per annum from the next day to the date of full payment.

2. The plaintiff's remaining claims against the defendant C are dismissed.

3. Of the costs of litigation, the costs incurred between the Plaintiff and the Defendant B shall be borne by the Plaintiff, and the remainder by the Defendant C, respectively.

4. Paragraph 1 can be provisionally executed.

Defendant B shall pay to the Plaintiff 144,288,280 won, and Defendant C shall pay to the Plaintiff 135,267,700 won and each of the above amounts jointly and severally with Defendant B at the rate of 20% per annum from the day following the delivery of a copy of the instant complaint to the day of complete payment.

1. Basic facts

(a) The relationship between the parties;

(1) The Plaintiff is a company that entered into a contract on consignment management with the council of occupants' representatives for the case of Kimhae-si D apartment (hereinafter referred to as the “instant apartment”).

(2) On June 11, 2011, Defendant B entered into an employment contract with the Plaintiff and worked as a managing agent at the instant apartment management office during the period from March 18, 2013, and was in charge of fund management, such as the imposition and collection of management fees for the instant apartment.

(3) Since the conclusion of the labor contract with the Plaintiff on July 1, 2012, Defendant C served as the head of the instant apartment management office from March 18, 2013.

B. Embezzlement by Defendant B

(1) Defendant B, around June 29, 2012, withdrawn KRW 9,020,580 from the account of the head of the Tong for the management of the apartment in this case, which he managed, under the heating expense, and embezzled it by arbitrarily using the total of KRW 144,28,280 over 20 times, as shown in the separate sheet, from ams to March 18, 2013.

(2) At the time, Defendant B personally used money in the name of the management expenses by withdrawing or transferring deposits with the seal of the president of the council of occupants' representatives and the head of the management office in the written application for the deposit of the management expenses passbook of this case.

(3) 피고 B은 위와 같은 횡령행위를 숨기기 위하여 관리비 납부 영수증에 날인되는 은행의 '수납인' 도장을 위조하여 이를 관리비 납부 영수증에 날인하여 마치 관리비를 제때 납부한 것처럼 꾸몄고, 통장 원본에 기재된 위 인출 또는 이체내역은 화이트로 지워버렸다.

(3) Defendant B was sentenced to one year of imprisonment for the crime of occupational embezzlement as set forth in Busan District Court Decision 2013Da4126, and the above judgment became final and conclusive due to Defendant B and the prosecutor’s failure to file an appeal.

C. The Plaintiff’s embezzlement and repayment

On April 26, 2013, the Plaintiff paid KRW 150,912,435, including the above embezzlement amount of KRW 144,288,280 and the second precision audit amount of KRW 5,500,00, as agreed money with respect to the embezzlement by Defendant B to the council of occupants’ representatives.

【Ground of recognition】 The fact that there has been no dispute, Gap Nos. 1, 2, 3, 7 (including the number of each class); the purport of the whole pleadings

2. Determination as to the claim against the defendant B

According to the above facts, the plaintiff suffered from the loss of paying the above agreed amount to the council of occupants' representatives of the apartment of this case due to the above embezzlement by the defendant B, and the defendant B is obligated to pay the above embezzlement amount of KRW 144,288,280 and damages for delay to the plaintiff.

3. Determination as to the claim against Defendant C

(a) Occurrence of liability for damages;

(1) The head of the management office of a multi-family housing has a duty to execute the business of receiving management expenses, long-term repair appropriations or other expenses and managing the said money with due care as a good manager, and is liable to compensate for property damage to occupants by intention or negligence (Article 55 of the Housing Act).

(2) However, comprehensively taking account of the circumstances described in the evidence Nos. 4, 6, and 7 (including each number), Defendant C, as a manager and supervisor of Defendant B and a person responsible for managing funds, shall supervise his duties by checking the details of withdrawals of the management fee deposit passbook, deposit balance, etc. in the course of performing the maintenance and disbursement of the apartment management fee, etc. in this case, and it is recognized that Defendant B’s negligence was committed to facilitate the above embezzlement by neglecting his duty of care to properly manage the seal of the head of the management office.

① The office staff working at the management office of the apartment of this case is in charge of only Defendant C, the director of the management office, and only Defendant B, the director of the accounting office, was in charge of direct direction and supervision over the payment of management expenses managed by Defendant C.

② The head of the management office shall have the seal of the head of the management office and the seal of the chairperson of the tenant representative council, but the withdrawal can be made. Defendant C left the place on August 8, 2012, and Defendant B had the head of the management office arbitrarily assigned the seal of the head of the management office that he/she manages without verifying his/her use.

③ Under the foregoing circumstances, Defendant B, who kept the seal of the head of the management office, had the seal of the head of the management office, affixed the seal of the head of the management office in six copies of the deposit office of the Busan Bank and the NAC, and withdrawn the deposit by affixing the seal of the head of the management office. After doing so, Defendant C did not check the details of the withdrawal of the head of the management office and the balance of the deposit, etc. with the seal of the head of the management office who can withdraw the money deposited in the management fee deposit account as above, even if Defendant C voluntarily left the seal of the head of the management office that can withdraw the money deposited in the deposit account.

④ Although Defendant C, as the head of the management office, must keep both the details of the payment of the instant apartment management fee, the substitution table and receipt for the use of the funds, Defendant C’s embezzlement was not kept in the apartment management office of the instant apartment, and Defendant C was unaware of the said facts until March 2013, when there was an external auditor.

⑤ 피고 B은 관리비 통장에서 무단인출 이체한 것을 감추기 위하여 통장 원본의 해당 거래내역 부분을 화이트로 지워놨는데, 피고 C가 통장 원본을 직접 확인만 했으면 피고 B의 횡령행위를 쉽게 발견할 수 있었을 것이다.

The head of the management office of the apartment of this case, who had been employed before Defendant C, directly confirmed the original copy of the management fee passbook of the apartment of this case, but the defendant C did not apply.

(3) Accordingly, Defendant C is liable to compensate the Plaintiff for the sum of KRW 135,267,70,00, the sum of the embezzlements in attached Nos. 2 through 20 that Defendant B embezzled during his tenure of office.

B. Limitation of liability for damages

However, in full view of the following circumstances, namely, the Plaintiff is an employer against Defendant C and an enterprise which entered into an entrustment contract with the instant apartment and multi-family housing management contract, and was negligent in finding any tort committed by the Defendants, who are their employees. Defendant B has embezzled the management fee of the instant apartment even before Defendant C was in office, and in relation to the forgery of the management fee, it is difficult for Defendant C to discover such act as the method of crime is planned and technical, and it is not easy to find such act. In light of the following circumstances, it is reasonable to limit the liability ratio of Defendant C to 20%. Defendant C requested an external audit of the fund management of the instant apartment on March 2013, and the external audit was discovered as a result of that audit.

C. Sub-committee

Therefore, Defendant C, as a joint tortfeasor, has the obligation to pay the Plaintiff KRW 27,053,540 (=135,267,700 per cent) and damages for delay.

4. Conclusion

Therefore, Defendant B is obligated to claim damages for delay at the rate of 20% per annum from August 1, 2013 to the day of full payment, which is the day following the day when the duplicate of the complaint in this case was delivered to Defendant B, and to pay damages for delay at the rate of 27,053,540 won among the above amounts of Defendant B and each of the above amounts, and the damages for delay at the rate of 5% per annum from August 14, 2013 to the day following the day when the duplicate of the complaint in this case was delivered to Defendant C, which is a day after August 14, 2013 to the day when the copy of the complaint in this case was delivered to Defendant C, and to pay damages for delay at the rate of 20% per annum as stipulated in the Civil Act until May 28, 2014, and from the next day until the day of full payment.

Therefore, the plaintiff's claim against the defendant B is justified, and the claim against the defendant C is justified within the above scope of recognition, and the remaining claim is dismissed as it is without merit. It is so decided as per Disposition.

The presiding judge, Park Jong-dae

Judges Nam-man

Judges Dognaia