The case holding that, with respect to the act of endorsement of promissory notes in breach of trust at the head of a bank branch, the bank's obligations are denied, and the employer's liability is recognized, but it offsets 50% by negligence

In a case where the head of a bank makes an endorsement of a promissory note issued by a third party for personal interest, the case holding that the bank's obligations of a promissory note shall be denied on the ground that it does not fall under the scope of its business as the institution or manager, and the employer's liability is recognized on the ground that it is similar or related to the employer's business activities or business activities from an objective perspective, and the victim's negligence is offset by 50% in consideration of the victim's negligence.

Article 756 of the Civil Code, Article 11 of the Commercial Code, Article 15 of the Bills of Exchange and Promissory Notes Act

Kim (Attorney Lee Lee-soo, Counsel for the plaintiff-appellant)

Seoul Bank (Attorney Cho Jae-hoon et al., Counsel for the defendant-appellant)

Seoul District Court Decision 95Da8622 delivered on November 2, 1995

Supreme Court Decision 96Da37190 Delivered on February 28, 1997

1. The plaintiff's appeal and the defendant's incidental appeal are all dismissed.

2. The expenses for appeal and incidental appeal shall be borne respectively by each person.

In the first place, the defendant shall pay to the plaintiff the amount of 736,300,000 won and the amount of 686,300,000 won from January 11, 1995, the amount of 50,000 won from January 31, 1995 to the service date of the copy of each complaint of this case, and the amount of 6% per annum from the next day to the full payment date, with the amount of 25% per annum.

Preliminaryly, the defendant shall pay to the plaintiff 674,263,100 won with 25% interest per annum from the day following the day of service of a copy of the complaint of this case to the day of full payment.

The judgment of the first instance as to the primary claim shall be revoked. On the basis of the primary claim, the defendant shall pay to the plaintiff the amount of KRW 736,30,000 and KRW 686,30,000 as to the amount of KRW 786,30,000 from January 11, 1995, and KRW 50,000 from January 31, 1995 to the delivery date of the copy of each complaint of this case, the amount of KRW 6% per annum and the amount of KRW 25,00 per annum from the following day to the full payment date.

Of the judgment of the court of first instance on the conjunctive claim, the part against the plaintiff ordering payment shall be revoked. Upon the conjunctive claim, the defendant shall pay to the plaintiff 37,131,550 won a sum of 25% per annum from the day following the day of service of a copy of the complaint of this case to the day of full payment.

The part against the defendant regarding the conjunctive claim in the judgment of the first instance is revoked, and the plaintiff's conjunctive claim corresponding to the revoked part is dismissed.

1. Basic facts

The following facts are not disputed between the parties, or there is no dispute between Gap evidence 1-1-4, Gap evidence 2-1 through 3, Gap evidence 3-1-4, Gap evidence 4-5, Gap evidence 6-1, 2, Gap evidence 7, Eul evidence 8-1 through 14, Eul evidence 8-2, and Eul evidence 2, and the whole purport of the pleadings in the testimony of the witness standd by the witness standd by the trial court, and there is no counter-proof.

A. On October 8, 1993, the non-party 1, who was working as the branch office of the non-party 2 and the non-party 2, who acquired the non-party 2 and the non-party 2, the importing company of electronic equipment, together with the non-party 2 and the non-party 2, who was responsible for the debt amounting to approximately KRW 700 million, and the non-party 1, who was the representative director, is in charge of the business, and the non-party 1 himself is in charge of the business related to the financing. While the non-party 3 was in charge of the part import from the United States, while the non-party 3 jointly operated the non-party company, the non-party company started its current account transaction with the above branch from November of the same year. Since the non-party company's business was poor and difficult to raise its operating fund in a normal way, the above non-party 1 used the head of the defendant bank's branch office to raise funds through the non-party 1's payment guarantee or endorsement.

B. From February 28, 1994, the above non-party 1 transferred his bank to the branch office of the Defendant Bank Chungcheong-ro 2 from February 28, 1994, and accordingly, the non-party 1 transferred his bank to the branch office of the branch office of the branch office of the Defendant Bank, and the non-party 1 continued to raise funds in the above manner.

C. In the process of this, the Plaintiff, based on the introduction of Nonparty Kim In-so, who had had had a discount on the bill discount of the non-party company, and the introduction of Kim In-so, the Plaintiff met the above non-party 2 and the above non-party 1 at the branch office of the Defendant bank. The above non-party 1 and the non-party 2 provided the Plaintiff with real estate of KRW 00 million in the Defendant bank as a collateral for the Defendant bank. However, while the funds of the Defendant bank were insufficient, it is false that the loan was difficult due to the shortage of the funds of the Defendant bank, the Plaintiff requested the payment discount of promissory notes issued by the non-party company.

D. Accordingly, the Plaintiff believed the end of the above non-party 1 and 2 as it is, at the branch office of the non-party 2, and received each of the following promissory notes (the Promissory Notes in this case) from the above non-party 1 to the non-party 1’s endorsement in the name of the branch office, and at the same time, the Defendant bank Chungcheong 2 received the endorsement from the non-party 1 in the name of the branch office, and at the same time, the Defendant bank Chungcheong 2 received the joint and several surety or the payment note in the name of the branch office, and paid each of the discount amount to the above non-party 2, the

(1) On September 10, 1994, the non-party company paid 176,00,000 won at a discount of 176,00,000 won remaining after deducting 24,00,000 won from the above-mentioned promissorysory notes for the four-month period from the maturity date to the maturity date, with respect to promissory notes as of January 10, 1995, which were issued by the non-party company on the same day at the face value of 20,00,000,000 won at a discount of 176,00,000 won;

(2) On September 15, 1994, the non-party company paid at a discount of KRW 88,500,000 for the remainder after deducting KRW 11,50,000 from the above-mentioned promissorysory notes at the rate of 3% per month for 25 months from the maturity date, with respect to promissory notes at the rate of KRW 11,50,000 per month from the above-mentioned promissory notes to the maturity date, and with respect to the face value of KRW 10,00,000 issued by the non-party company on the same day;

(3) On November 7, 1994, the non-party company paid at a discount of KRW 361,963,100,00 for the remaining 386,30,000 for the face value issued by the non-party company on the same day, the place of payment, and the place of issue, each Seoul Special Metropolitan City, the date of payment, and the amount of promissorysory notes on January 10, 1995, after deducting KRW 24,336,90 for the two-month period from the above promissorysory notes to the due date, at a rate of KRW 361,963,10 for the two-month period;

(4) On December 16, 1994, the non-party company paid 47,800,000 won at a discount for the remaining 47,00,000 won after deducting 2,20,000 won from the above promissorysory notes at the rate of 3% per month from the due date to the due date, with respect to promissory notes as of January 30, 1995, which were issued by the non-party company on the same day at the face value of 50,00,000,000 won, each place of payment, and place of issue, Seoul Metropolitan Government, and the due date of payment.

E. The Plaintiff made a lawful presentation of payment within the respective payment period of the Promissory Notes of this case, but it became a non-payment refusal on the ground of each non-transaction.

F. Meanwhile, in order to use the above fraudulent act, the above non-party 1 used the rubber name plate and the name seal of the branch office Nonparty 1, "Seoul Trust Bank Woo-ro 2" as the non-party 1 of the branch office. The above joint and several sureties or the payment angle was written in blank with the name of the other party or the pen, and the above forged rubber name plate and the official seal affixed thereon.

2. Judgment as to the main claim

A. The parties' assertion

As the plaintiff's primary claim, the above non-party 1, who is the vice president of the defendant bank, is the manager of the defendant bank with comprehensive power of attorney under the Commercial Act, and the non-party 1, who is the vice president of the defendant bank, made endorsement on each of the Promissory Notes in this case, is an agent or manager of the defendant bank, and therefore, each of the above endorsement comes into effect on the defendant bank, and accordingly, the defendant bank claims the payment of the Promissory Notes in this case against the defendant bank, claiming that the non-party 1 had a duty of recourse as an endorser.

As to this, the Defendant bank’s endorsement on each of the Promissory Notes in this case does not belong to the scope of the Defendant bank’s business, and even if it is included within the scope of the Defendant bank’s domestic business, the Defendant bank’s endorsement on the Promissory Notes in this case was null and void as it knew or could have known that it is not the other party’s actual intent.

(b) Markets:

According to the purport of subparagraph 1-5 (Provisions of Payment Guarantee of the Defendant Bank) and the whole purport of pleadings, the guarantee of the Defendant Bank is allowed only for customers with clear assets and credit. The guarantee of the Defendant Bank is prohibited from being paid for a simple private financial transaction between individuals. Even in the case of payment guarantee, the method of issuing a payment guarantee in the form of a blank promissory note jointly issued by the applicant for the guarantee and the applicant for the guarantee and his joint guarantor, including the creditor and the debtor of the guaranteed debt, the guaranteed amount, the guaranteed amount, the guarantee amount, etc., and in particular, the guarantee of the bill security is limited to the so-called commercial bill issued as a result of transactions of goods and services conducted in ordinary business activities consistent with the business purpose of the relevant company. In the case of the guarantee, it is possible to acquire the relevant commercial bill as collateral and issue a payment guarantee certificate, and it is not possible to acknowledge otherwise in the name of the Defendant Bank to request the issuance of a promissory note from the Bank of Korea to borrow funds from the Bank of Korea.

Accordingly, the above non-party 1's act of endorsement on each of the Promissory Notes in this case was not a true meaning transfer endorsement in light of the circumstances of endorsement between the plaintiff, the non-party 1 and the non-party 1 as the party concerned, but a so-called collateral endorsement in light of the circumstances of endorsement between the plaintiff, the non-party 1 and the above non-party 1, and such facts were known to the plaintiff. According to the above facts, according to the above facts, regardless of its subjective intent (the non-party 1 committed the act of endorsement with the intent of his own interest knowing that the act of endorsement does not belong to the scope of the defendant bank's business), although it is viewed as an objective intent, regardless of its objective nature, it cannot be said that the non-party 1's act of endorsement without acquiring the Promissory Notes as security and the non-party 1's non-party 1's act of endorsement belongs to the scope of the defendant bank's agency or manager. Thus, the act of endorsement on the Promissory Notes in this case does not affect the defendant bank's.

3. Judgment on the conjunctive claim

(a) Occurrence of liability for damages;

As the plaintiff's preliminary claim, the defendant bank asserts that since the above non-party 1, who is his employee, suffered damages equivalent to the discount amount due to the violation of his duties, the plaintiff bank is liable to compensate for the damages as the employer.

On the other hand, in the case of the employer's liability, if an employee's act of performing business which caused damage to a third party is objectively deemed to be similar to or related to the employer's business activities or the act of performing business affairs in an objective manner even though it does not belong to the act of performing its original business affairs, the employer shall be liable for damages suffered by the third party due to such employee's act of performing the business affairs. Thus, the above non-party 1's endorsement of the bill of this case cannot be deemed to belong to the scope of the defendant bank's business, and the above non-party 1's act of conducting the business affairs cannot be deemed to belong to the scope of the defendant bank's business affairs. However, according to the above facts acknowledged above, the above non-party 1 is not the business affairs for the defendant bank, but merely the non-party company's act of paying promissory notes issued by the non-party company for the personal interest of himself and the non-party company. At the same time, the defendant bank's act of conducting the payment guarantee under the name of the head of the defendant bank is objectively related to the plaintiff's employee's duty.

B. Judgment on the defendant's defense

In regard to this, the defendant bank alleged that the defendant bank was not liable for damages because it knew or was gross negligence that the above non-party 1's endorsement and payment guarantee act did not constitute legitimate performance of duties at the time when the plaintiff discounted each of the Promissory Notes of this case, and thus, the defendant bank was not aware of or was not aware of the fact that the above non-party 1's act of endorsement and payment guarantee of the Promissory Notes of this case was in breach of trust against the intent or interest of the defendant bank, but it is difficult to view that the plaintiff was not aware of the fact that the above non-party 1's act of endorsement and payment guarantee of the Promissory Notes of this case was against the intent or interest of the defendant bank, or that the non-party 1 did not know

C. Limitation on liability

However, comprehensively taking account of the above evidence and the whole purport of the pleading as stated in the above evidence No. 1-5, commercial banks including the defendant bank generally do not guarantee the payment obligation between individuals, but does not guarantee the payment obligation only for commercial bills arising from the transaction of goods and services. In the event the defendant bank provides a payment guarantee, it does not ask for a discount request and issue a payment guarantee certificate with a certain form, and it does not guarantee the payment guarantee in the form of a promissory note. The payment guarantee includes the client, the beneficiary, the beneficiary, the amount guaranteed, the guarantee period, and the purpose of the payment guarantee. However, the above non-party 1 stated the payment guarantee notice of the promissory note of this case as the payment rejection in blank without using the payment guarantee certificate with a certain form and delivered the promissorysory note to the plaintiff, which would have been responsible for and paid the payment of the promissory note, and it does not constitute an ordinary interest of the non-party 1, which would have been at least 1,000,000 won of the above amount of the payment guarantee by the defendant bank.

(d) Damages;

Furthermore, with respect to the damages suffered by the Plaintiff, the damages suffered by the Plaintiff by acquiring the Promissory Notes in question by Nonparty 1’s deception are equivalent to the discount amount actually contributed to acquire them. Thus, the damages suffered by the Plaintiff is equivalent to KRW 674,263,100 ($176,000 + 8,500,000 + 361,963,100 + 47,800 + 100 + 47,800,000 + 337,131,550 (674,263,100%), which is the sum of the amounts actually contributed to acquiring the Promissory Notes in question, as seen in Section 1-D.

4. Conclusion

Therefore, the plaintiff's primary claim of this case is dismissed as it is without merit, and the defendant, upon the plaintiff's preliminary claim, has the obligation to pay damages for delay at the rate of 5% per annum under the Civil Act from May 23, 1995, which is the day following the delivery date of the complaint of this case claimed by the plaintiff, until November 2, 1995, and 20% per annum under the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the next day to the full payment date. Thus, the plaintiff's primary claim of this case is justified within the above recognition scope, and the plaintiff's conjunctive claim of this case shall be accepted within the above recognition scope, and the remaining claims shall be dismissed as there is no reason. The court of first instance shall dismiss all the plaintiff's appeal and the defendant's incidental appeal as well as the defendant's incidental appeal, and it is so decided as per Disposition by applying Articles 95 and 89 of the Civil Procedure Act with respect to the burden of appeal expenses.

Judges Lee Dong-young (Presiding Judge)