Newan Mutual Savings Bank (Law Firm UBS, Attorneys Kim Gyeong-hee, Counsel for defendant-appellant)

Defendant Co., Ltd. (Law Firm Han, Attorneys Park Jong-soo, Counsel for the defendant-appellant)

April 10, 2007

Seoul Central District Court Decision 2004Ga356436 Decided November 4, 2005

1. Revocation of a judgment of the first instance;

2. The plaintiff's primary claim is dismissed.

3. Upon the conjunctive claim added at the trial, the defendant shall pay to the plaintiff 446,178,082 won and the amount equivalent to 5% per annum from January 20, 2004 to April 24, 2007, and 20% per annum from the next day to the date of full payment.

4. The plaintiff's remaining conjunctive claims are dismissed.

5. A. A. Pursuant to the application for the return of provisional payments, the Plaintiff shall pay to the Defendant an amount of KRW 1,007,592,965 and the amount at the rate of 5% per annum from November 10, 2005 to April 24, 2007, and 20% per annum from the following day to the date of full payment.

B. The defendant's remaining provisional payment claim is dismissed.

C. The above paragraph (a) can be provisionally executed.

4. 70% of the total litigation cost (including the application cost for the return of provisional payments) shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

1. Purport of claim

Main and Preliminary, the Defendant shall pay to the Plaintiff the amount of KRW 1,200,000 and the amount of KRW 6% per annum from January 20, 2004 to November 18, 2004, and 20% per annum from the next day to the day of full payment (the Plaintiff added the amount of damages for tort to the conjunctive claim).

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

3. Purport of request for the return of provisional payments

The plaintiff shall pay to the defendant 1,494,049,314 won and the amount equivalent to 5% per annum from November 9, 2005 to the service date of a duplicate of the application for the provisional payment of this case, and 20% per annum from the next day to the day of complete payment.

1. Basic facts

The following facts are not disputed, or there is no dispute, Gap evidence 1 through Gap evidence 7, Eul evidence 10, Eul evidence 19, Eul evidence 1, Eul evidence 4, Eul evidence 5, Eul evidence 11, Eul evidence 21, Eul evidence 36, Eul evidence 79-1, 2, Eul evidence 9-9-1, 92, and the whole purport of the arguments can be acknowledged in full view of the whole purport of the arguments.

A. Status of the parties

1) Co-defendant 1 corporation of the first instance trial was an enterprise aimed at developing, manufacturing, and selling various electronic currency terminal devices, and Nonparty 2 was appointed as the representative director of the Co-Defendant 1 corporation of the first instance trial on December 30, 202.

2) The Defendant Company is a corporation established on March 30, 1994 and registered with the KOSDAQ market on March 12, 2002, which is a corporation with the largest shareholder of the Ministry of Oceans and Fisheries under the government's measures for logistics informatization, and whose capital for the business of selling computer equipment is 12 billion won.

3) Nonparty 3 served as the representative director of the Defendant Company from December 1999 to March 2004. Nonparty 1, as a non-registered standing officer of the Defendant Company, served as the head of the Strategic Planning Headquarters in charge of new businesses from January 14, 2002, and became the managing director on January 2, 2003.

4) At the time of promoting electronic currency projects as a new project, the Defendant Company: (a) had technical skills and research personnel in this field; and (b) invested 300,000,000 won, which is 9.35% of the shares issued by Codefendant 1, 201, in order to establish strategic cooperative relations with Codefendant 1, 1, who meet the requirements for technical certification of venture businesses; and (c) invested in the purchase of 80,000

B. Loans to Co-Defendant 1 corporation in the first instance trial

1) On December 2002, Nonparty 4, a person in charge of the Plaintiff’s loan, was requested to lend KRW 1.5 billion to the Co-Defendant 1 corporation of the first instance on the condition that the Defendant Company completely guaranteed the front on the blank number sheet from Nonparty 6, a person in charge of financing Co-Defendant 1 corporation of the first instance, on the introduction of Nonparty 5, a person in charge of lending funds from Hyundai Swiss Bank.

2) After examining the level of corporate credit, such as the property status, sales, credit status, and shareholder relationship of Co-Defendant 1 in the first instance trial, the Plaintiff determined to lend KRW 1.5 billion to Co-Defendant 1 in the first instance trial when the Defendant Company guaranteed payment.

3) On January 9, 2003, Nonparty 4, the representative director of the Co-Defendant 1 corporation of the first instance trial, was signed and sealed on the letter of credit transaction agreement (the debtor co-defendant 1 corporation, Nonparty 2, the joint guarantor, the amount of credit limit 1.5 billion won, the expiration date of the term of credit, 10% per annum on January 12, 2004), Nonparty 2, the joint defendant 1 corporation of the first instance, the payment place, the light bank, the merchant bank, the merchant bank's individual customer number, the issue date, and the number of shares (hereinafter referred to as the "number of shares per case") by Nonparty 2, the representative director of the Co-Defendant 1 corporation of the first instance trial.

4) On January 10, 2003, Nonparty 4 visited the Defendant Company with Nonparty 6 and met Nonparty 1 upon introduction by Nonparty 6. At the time, Nonparty 1 introduced that “the director in charge of financing the Defendant Company is a director in charge of the Defendant Company, and the Defendant Company is participating in the entire financing and management of the Defendant Company 1 Co-Defendant 1 in the first instance trial by dispatching it to Co-Defendant 1 in the first instance trial, and ordered the name of the Defendant Company to be registered as the regular director of the Defendant Company. Nonparty 1 received the check of the instant case and entered into the representative director’s office upon receiving the check of the number of shares. Nonparty 1 affixed the name and corporate seal impression of the Defendant Company at the bottom of the left-hand side, and thereafter, entered the name and corporate seal impression of the Defendant Company at the end of January 10, 2003, and issued the certificate of the number of shares per the instant case to Nonparty 1 in the form of a joint Defendant 1’s meeting issued by the Defendant Company 10.

5) On January 13, 2003, the Plaintiff loaned KRW 1.5 billion to co-defendant 1 corporation of the first instance trial by means of discounting a promissory note with a face value of KRW 1.5 billion issued by Co-defendant 1 corporation (hereinafter “instant loan”). In this case, at KRW 1.50 million, the Plaintiff paid KRW 1,487,260,274 by deducting KRW 12,739,726 as stated in the attached Table 1 from KRW 1.5 billion as stated in the attached Table 1. Co-defendant 1 of the first instance trial paid KRW 1,487,260,274 to an interview home. The Co-defendant 1 of the first instance trial paid a discount charge every month from the date of the loan, and exchanged a new promissory note with its issuance.

6) Co-defendant 1 corporation of the first instance trial repaid total of KRW 300 million out of the loans to the Plaintiff from December 1, 2003 to December 29, 2003.

7) On January 1, 2004, Nonparty 4 received a request from Co-Defendant 1 corporation of the first instance to extend the redemption date of KRW 1.2 billion for the remaining loans by one week, and on January 8, 2004, Nonparty 4 agreed that the payment date shall be extended on January 19, 2004, but the issuance of promissory notes and endorsement confirmation signed by the Defendant Company, and the promissory notes issued in the names of Co-Defendant 1 of the first instance trial, Non-Party 1 of the first instance trial, Non-Party 1 of the Defendant Company, and Non-Party 1 of the Defendant Company to the Plaintiff. Accordingly on the same day, Non-Party 2 entered into the Plaintiff’s office on January 12, 2004, with the issuance date of the promissory notes issued by Co-Defendant 1 (hereinafter “instant promissory notes”) and the issuance date of Non-Party 1 of the non-Party 2 of the first instance trial and the issuance date of the promissory notes issued by Non-Party 1 of the first instance Company.

8) On January 12, 2004, Nonparty 1 issued to Nonparty 4 a promissory note in this case, a promissory note in which an endorsement made in the name of the Defendant Company was indicated, a promissory note in which the Defendant Company and Nonparty 1 added to a joint issuer, a written endorsement confirmation on the Promissory Notes in this case, and a certificate of the personal seal impression issued by the Defendant Company. In addition, Nonparty 1 issued to the Plaintiff the date of preparation of a certificate of collateral guarantee to guarantee the obligation of Codefendant 1 in the first instance trial by stating that it will guarantee the obligation of the Defendant 1 in the limit of KRW 1,560,000,000,000, written retroactively on January 13, 2003. The Plaintiff extended the repayment date of loans to Codefendant 1 in the first instance trial to January 19, 2004.

(9) On January 19, 2004, the Plaintiff appropriated the date of payment of the check of this case to KRW 1.2 billion. On January 19, 2004, the Plaintiff offered payment of the check of this case and the promissory note of this case on January 19, 2004, but refused to pay all.

2. The plaintiff's assertion

(a) The primary claim

(1) The Defendant Company guaranteed the instant bill of shares, and thus, it is obligated to pay to the Plaintiff the amount of KRW 1.2 billion as the check money or the bill of exchange, and interest thereon.

(2) Unless otherwise, Defendant Company is a 3 major shareholder of the first instance trial, and Co-Defendant 1 of the first instance trial is closely related to the electronic currency terminal business, which is an important business division of the Defendant Company. Nonparty 4, the Plaintiff’s employee, who directly visited Defendant Company and received the documents of guarantee relation from Nonparty 1, the executive director of the Defendant Company, because the Defendant Company, in order to support Co-Defendant 1 of the first instance trial, directly visited the Defendant Company and received the documents of guarantee relation from Nonparty 1, who is the executive director of the Defendant Company. As such, the Plaintiff believed that Nonparty 1 was entitled to guarantee the instant check number and endorsement of promissory notes on behalf of the Defendant Company, and there is a justifiable reason to believe so, the Defendant Company is obligated to pay the said check amount or promissory notes to the Plaintiff in accordance with the apparent representation doctrine.

(b) Preliminary claim

Even if the endorsement on the guarantee portion of the check of this case and the promissory note was forged by Nonparty 1, etc., the Plaintiff believed that the guarantee or endorsement by the Defendant Company was genuine and incurred a loss equivalent to the same amount by lending KRW 1.2 billion to Co-Defendant 1 corporation in the first instance trial, and thus, the Defendant Company, as the employer of Nonparty 1, is liable to compensate for the damages suffered by the Plaintiff.

3. Determination

(a) Responsibility as a guarantor on the number of units and an endorser of a promissory note;

1) If, barring any special circumstance, the authenticity of the seal imprinted on a private document is presumed to have been made by the signature’s will, i.e., the act of affixing the seal is presumed to have been made by the signature’s will, barring any special circumstance, and once the authenticity of the seal imprint is presumed to have been made, the authenticity of the entire document is presumed to have been made pursuant to Article 358 of the Civil Procedure Act, but such presumption is de facto presumed. As such, if the person disputing the authenticity of the seal imprint proves circumstances that the authenticity of the seal imprints is made by the signature’s will, i.e., the act of affixing the seal imprints by the signature’s will, if he proves the authenticity of the seal imprints, the presumption of the authenticity of the seal imprints cannot be maintained, and even if it is verified that the act of affixing the seal was made by a person other than the signature’s name, the person who has made the document bears the responsibility to prove the fact that the act of affixing the seal was based on a legitimate title delegated by the signature’s (see, etc.).

2) In full view of the purport of the entire pleadings as a result of the appraisal by Nonparty 7 of the first instance trial, it can be recognized that the stamp image of the Defendant company affixed each seal on the surface of the number of units of the instant case and the column for endorsement of the Promissory Notes of this case has been withdrawn by the corporate seal impression of the Defendant company. Accordingly, each of the above stamp image is presumed to have been affixed by Nonparty 3, the representative director

3) As to this, the Defendant asserts that Nonparty 1 arbitrarily affixed and sealed the seals of the Defendant Company on the instant party shares and promissory notes.

A) First, we examine the list of units of this case. In full view of the purport of the entire arguments in the statement Nos. 11 and No. 19, Nonparty 3 may recognize the fact that he left the country on January 6, 2003 and entered the Republic of Korea on January 13, 2003. Therefore, on January 10, 2003, it is apparent that Nonparty 3 was not staying in the Republic of Korea, and it is evident that Nonparty 3 was not staying in the Republic of Korea on January 10, 2003, it is clear that the Defendant company’s seal was affixed by a person other than Nonparty 3 on the statement of units of this case.

As to this, the plaintiff asserts that the non-party 4, who was the employee of the plaintiff company, visited the defendant company directly to obtain the seal of the defendant company in this case, and the minutes of the board of directors meeting and the certificate of the corporate seal impression issued together at this time, cannot be prepared and issued without any authority. The non-party 8, who was the employee of the defendant company, thoroughly manages the corporate seal of the defendant company, is entitled to use it only by issuing the corporate seal to the non-party 1, and the non-party 8 is entitled to use it. The non-party 8's delivery of it to the non-party 1. The facts alleged by the plaintiff alone are difficult to recognize that the stamp image of the defendant company affixed on the bill of this case was affixed with the legitimate authority by delegation of the non-party 3, and there is no evidence to recognize

Rather, in full view of the following circumstances, Nonparty 1’s sealed the corporate seal impression of the Defendant Company on the per unit of this case without authority.

(1) recognised facts

In full view of the evidence Nos. 7-1 through 11 of Eul, Eul evidence Nos. 13-1 through 15 of Eul, Eul evidence Nos. 17-1 through 18 of Eul, Eul evidence Nos. 21 through 35 of Eul, Eul evidence Nos. 58-1 through 63-2 of Eul evidence Nos. 79-1 and 2 of Eul, Eul evidence Nos. 80, Eul evidence Nos. 85-1 and 2 of Eul, and Eul evidence Nos. 92, the following facts can be acknowledged:

(A) On March 28, 2002, the Defendant Company, jointly with Co-Defendant 1 corporation of the first instance trial, intended to carry out the business of supplying and installing electronic currency terminals to Daegu Private Taxi Transport Association (hereinafter “Tgu business”). On April 8, 2002, the Co-Defendant 1 corporation of the first instance trial guaranteed the guarantee period of KRW 3.5 billion from Daegu Bank for three months and extended the guarantee period of KRW 3.5 billion on July 8, 2002. Thereafter, the period of the guarantee period of the first instance court was terminated without the outcome. Since the first instance court’s first instance court’s loans were repaid at the time of the first instance on December 2002 (the loan balance was KRW 2.5 billion), Defendant Company’s Co-Defendant 1 corporation appears to have used part of the loan amount of KRW 3 billion from Hyundai Swiss Mutual Savings Bank of Korea to repay its repayment), Defendant Company’s debt guarantee liability was extinguished, its guarantee liability was terminated by the first instance court’s first instance judgment, its extension, and second instance’s guarantee liability.

(B) On September 11, 2002, Co-Defendant 1 Co-Defendant 1 corporation of the first instance court loaned KRW 1 billion as security a promissory note, the face value of which is one billion, issued by the Co-Defendant 1 corporation of the first instance and on which the Defendant Company’s endorsement was recorded. On January 27, 2003 (this also appears to have been repaid from the Hyundai Swiss Mutual Savings Bank as part of KRW 3 billion).

(C) On October 16, 2002, when Defendant 1 Co-Defendant 1 borrowed KRW 3 billion from Hyundai Switzerland Mutual Savings Bank, Nonparty 9, the vice president of Defendant Company, without the resolution of the board of directors without the consent of Nonparty 3 (at the time of Nonparty 1’s business trip) upon the request of Nonparty 1, the vice president of Defendant Company, the vice president of Defendant Company, obtained the approval of Nonparty 3 from Nonparty 8, the head of the management support office in custody of the Defendant Company, who received the approval of Nonparty 3, and confirmed that Nonparty 3 returned to the Republic of Korea (However, Nonparty 9 reported that the guaranteed amount was KRW 2 billion).

(D) On December 30, 200, Nonparty 2 took office as a new representative director of the first instance joint Defendant 1 corporation on December 30, 2002, accompanied with Nonparty 1 and 6, and took out loans from the Plaintiff, KRW 1.5 billion from the Plaintiff, KRW 1 billion from the said mutual savings bank on January 13, 2003 (delivery of promissory notes in which the Defendant Company’s endorsement is written), KRW 2 billion from the Epik Mutual Savings Bank on January 20, 2003 (Delivery of Promissory notes in which the Defendant Company’s endorsement is written), and KRW 1 billion from the Dae-young Mutual Savings Bank on January 30, 2003 (Delivery of the number of shares written on the Defendant Company’s guarantee). At each time, Nonparty 2 was granted loans in the name of the first instance joint Defendant 1 corporation on January 30, 2003, and each of the said promissory notes issued by the Defendant Company on January 1, 2001.

(E) Nonparty 1, along with Nonparty 2 and 6, delivered to the mutual savings bank, directly or through Nonparty 2, the guarantee documents of the Defendant company, such as promissory notes issued by Defendant 1 Co-Defendant 1 Co-Defendant 1 Co-Defendant 1, a check of shares, a confirmation of endorsement, and a resolution by the board of directors on loan guarantee, stating the purport of endorsement and payment guarantee of the Defendant company. However, when receiving a loan from each of the above mutual savings banks, the Defendant

(F) Nonparty 1, who is in the position of the head of the Defendant Company Strategy and Planning Headquarters, was registered as a director of the Co-Defendant 1 corporation of the first instance trial on March 28, 2003. Around that time, Nonparty 1 and Co-Defendant 1 corporation of the first instance trial promoted a joint project to participate in an open tendering procedure for the purchase contract of smart card terminals promoted by the Korea Communications Corporation (hereinafter “KT project”).

On August 1, 2003, the Defendant Company entered into a contract with Co-Defendant 1 Company of the first instance to be supplied with KRW 1,363,725,00 of smart card terminal devices in KRW 165,00,00 on the premise that it was awarded a successful bid in the above open bid, and paid KRW 1,275,082,875 on the contract date and August 4, 2003 in advance to Co-Defendant 1 Company of the first instance trial.

However, when the above contract for the supply of the above device was terminated by the defendant company's escape from the above bidding, the defendant company demanded the co-defendant 1 corporation of the first instance on October 28, 2003 to return the above advance payment or take corresponding measures.

(G) Upon the arrival of the due date for loans to Hyundai Swiss Mutual Savings Bank, the Co-Defendant 1 corporation of the first instance court took out a new loan of KRW 3 billion at the Hyundai Swiss Mutual Savings Bank of Korea on January 17, 2003, and repaid loans to Hyundai Swiss Mutual Savings Bank of Korea. Co-Defendant 1 corporation of the first instance court took out a loan of KRW 1.1 billion from the Samsung Swiss Mutual Savings Bank of Korea on January 5, 2004 by taking out a promissory note with the endorsement of the Defendant Company as collateral, which entered in the endorsement of the Defendant Company, and repaid KRW 1.5 million out of the Hyundai Swiss Mutual Savings Bank of Korea.

(h) On January 12, 2004, the Defendant Company requested the Co-Defendant 1 corporation of the first instance to lend KRW 1 billion to Nonparty 2, who was faced with the insolvency crisis, and thus, could be exempted from the default on face. The Defendant Company loaned KRW 1 billion to Co-Defendant 1 corporation of the first instance on January 16, 2004.

(i) Co-Defendant 1 Co-Defendant 1 corporation of the first instance trial was unable to settle the instant promissory note and the per unit assignment table presented by the Plaintiff on January 19, 2004, and the first default on payment was suspended and current account transaction was suspended on the 26th of the same month.

(j) On January 26, 2004, the defendant company filed a complaint with Nonparty 1, 2, 6, and 9 on charges of fraud and breach of trust, but the above persons filed a complaint with the court of first instance on April 27, 2004 on charges of fraud and breach of trust, but the court of first instance rendered a decision to suspend indictment or to suspend witness after the failure of the Codefendant 1 corporation.

(k) According to the minutes of the board of directors of the Defendant Company (Evidence No. 21) delivered by Nonparty 1 at the time of the instant loan, the name of the Defendant Company is indicated as “Korean Logistics Information (State)” and the name and seal order of the directors at the time of the instant loan to Daegu Bank is written differently from the meeting minutes of the board of directors of the Defendant Company (Evidence No. 28, the board of directors was held) submitted by the Daegu Bank

In addition, after the escape of Nonparty 2, etc., the defendant company discovered the boxes of documents containing the date of preparation in the office of the co-defendant 1 corporation of the first instance trial, the multiple dates of preparation are distributed on January 2003 and the seal of the corporate seal of the defendant company is affixed, the confirmation letter of endorsement, the blank where the seal of the defendant company is affixed, the business registration certificate of the defendant company written in comparison with the original copy, the business registration certificate of the defendant company written in comparison with the original copy, the articles of incorporation of the defendant company, the name of the defendant company, and the seal of the executive officers, etc., and each of the above reports of the board of directors were stated as the "Korean logistics information" and the order of the director's signature and seal is as the order of the above Eul evidence 21.

(2) Determination

As seen above, the first instance court’s joint Defendant 1 did not appear to have known of the whereabouts of Nonparty 1, 2, and 6 related to a series of loans including the instant loan immediately after the default on payment (in particular, Nonparty 6, who is an employee of the first instance court, did not commit any criminal act related to the loan). ② At the time of January 203, when the loans were extended from the mutual savings bank several times, Defendant 1 did not appear to have any reasonable ground to guarantee the obligations of Defendant 1 corporation in the first instance court, under the circumstance that the joint Defendant 2 did not jointly implement the business with the first instance court’s joint Defendant 1 corporation, including the instant loans, (3) it appears to have been difficult for the first instance court to accept the repayment of the loans from the first instance court’s first instance court’s 00 billion won, and (4) it was difficult for Defendant 1 and the second instance court’s joint Defendant 2 to request the return of the loans to the first instance court’s non-party 1 corporation, including the instant loans.

B) Next, the Promissory Notes issued on January 8, 2004 are deemed to have been issued for the purpose of extending the repayment date of loans to Co-Defendant 1 corporation in the first instance trial. As seen earlier, it is difficult to recognize the guarantee portion of the Defendant Company’s guarantee under the per share swap issued at the time of the instant loan, and it appears to have been forged by Nonparty 1, etc., therefore, it is difficult to deem that Nonparty 3, the representative director of the Defendant Company, is either endorsed to the Promissory Notes in the instant case or delegating another person to endorsement in order to extend the repayment date of loans to Co-Defendant 1 corporation in the first instance trial.

C) The Defendant Company’s guarantee of this case’s number of shares and endorsement of promissory notes cannot be recognized as having made their authenticity.

(b) the existence of apparent representation liability

1) Whether or not there exists an expression agency liability with respect to the statement of number of shares

Article 126 of the Civil Act on Representation refers only to the person who becomes the other party to the act of expression as the other party, and the guarantee of a promissory note is a sole act of a guarantor with the purpose of securing the obligation of the amount of the promissory note on behalf of the issuer. Thus, in a case where the guarantee of a promissory note is forged because the actual other party is not the third acquisitor of the promissory note, but the issuer and the third acquisitor who is transferred the promissory note are not the third acquisitor, but the third acquisitor does not constitute a third party who can assert that the above guarantee act has its effect as an act of expression as stipulated in Article 126 of the Civil Act (see Supreme Court Decisions 201Da58443, Dec. 10, 202; 2001Da584433, Dec. 10, 2002). Such

The issuer of the check of this case does not have a position to directly assert that the guarantee of the check of this case by Nonparty 1’s co-defendant 1 and the Plaintiff, who is the holder of the check of this case, has an effect on the Defendant company as an expression agent in excess of his authority. Furthermore, at the time when the Co-defendant 1 corporation received a large amount of loans from the mutual savings bank several times from the Defendant company, it appears that Nonparty 2, the representative director of the Co-Defendant 1 corporation of the first instance court, was aware or could have known, as a matter of course, that the guarantee of the Defendant company’s co-defendant 1 corporation of this case’s check of this case’s check of this case’s check of this case’s check of this case’s check of this case’s check of this case’s check of this case’s check of this case’s check of this case’s check of this case’s check of co-defendant 1 corporation, the Plaintiff cannot be deemed to have any justifiable reason to believe that Nonparty 1 had the power to guarantee the check of this case’s.

2) Whether or not there is an apparent representation liability in respect of a promissory note

① The Plaintiff’s loan is the first transaction between the Plaintiff and Co-Defendant 1 of the first instance trial and the Defendant Company. Nonparty 4, an employee of the Plaintiff, believed that Nonparty 1 was a director in charge of funds and did not confirm the intention of guarantee to the representative director of the Defendant Company or a person in charge of funds. ② Even if Nonparty 4 was ordered by Nonparty 1 and received the certificate of seal impression of the Defendant Company and the meeting minutes of the board of directors, Nonparty 1 is not a person in charge of funds of the Defendant Company, but is not recorded as a director of the board of directors’ meeting minutes or the Defendant Company’s corporate register. The Plaintiff’s explanation of the above meeting minutes of the board of directors was written erroneously. ③ Around January 12, 2004, when the Plaintiff received the instant promissorysory note, it cannot be deemed that the Plaintiff’s right to claim for a promissorysory note extension on behalf of the Plaintiff for the purpose of preferential repayment to other mutual savings banks.

(b) the existence of employer liability;

1) Occurrence of liability

A) Grounds for liability

(1) In light of the following circumstances acknowledged based on the facts acknowledged earlier, namely, Nonparty 1’s act of forging the portion of guarantee on the per share swap of this case is objectively related to the Defendant Company’s act of business or execution of business affairs in light of the external appearance, even though Nonparty 1 is not a person in charge of funds for the Defendant Company, but was in charge of new business related to Defendant 1 Company as a non-registered managing director, and the Plaintiff and other mutual savings banks also have the aspect of performing the loan and trusting the position of the Defendant Company 1’s Defendant Company, and the Defendant Company actually maintained the business cooperative relationship, such as guaranteeing the obligations to the Daegu Bank of the Defendant Company 1 upon Nonparty 1’s request.

In addition, as seen earlier, on October 16, 2002, the first instance court co-defendant 1 corporation was negligent in failing to exercise the duty of care to direct and supervise the first instance co-defendant 1 corporation at his own discretion without reporting to the representative director of the Defendant company at the time of borrowing KRW 3 billion from the Hyundai Swiss Mutual Savings Bank on October 16, 2002, because the non-party 1 took the lead in the act of guaranteeing the obligation of the Defendant company with the non-party 9 without reporting to the representative director of the Defendant company, and thus, the Defendant company is liable to compensate the Plaintiff for damages caused to the non-party 1's tort, as the non-party 1's employer, as the non-party 1's employer, without following the resolution of the board of directors, etc.

(2) The plaintiff's intentional or gross negligence

As the Plaintiff knew or was negligent by gross negligence, the Defendant Company asserts that there was no employer liability for the Defendant Company, as the Plaintiff knew or was negligent in not knowing that the guarantee of the check of this case was forged. In addition, there is no evidence to deem that the Plaintiff knew that the guarantee of the check of this case was forged. As seen earlier, Nonparty 1, as executive director of the Defendant Company, has overall control over new businesses related to the Defendant Company 1 as an executive director of the first instance trial, ② the seal impression of the Defendant Company affixed on the check of the check of this case was based on the de facto corporate sense of the Defendant Company; ③ the Defendant Company was in a cooperative relationship with the Defendant Company 1, such as promoting joint business by investing the Co-Defendant 1 Company in the first instance trial, and thus, the Plaintiff appears to have a reasonable ground in determining that there was a reason to guarantee the Co-Defendant 1 Company of the first instance trial; ④ In light of the fact that Nonparty 1, a non-registered director of the Defendant Company, was negligent in managing the corporate seal of the Defendant Company to the extent that it was stolen.

B) Limitation of liability

① Nonparty 4, a person in charge of the Plaintiff’s loan, violated the procedures prescribed by the standard regulations for mutual savings banks (No. 54, No. 10, and Articles 10 and 105 of the Loan Regulations), such as: (a) the Plaintiff’s representative director at the time of receipt of the check of the check of the check of the check of the check of the check of the check of the check of the check of the check of the check of the check; (b) the loan of this case was made at the discount of the bill issued by Co-Defendant 1, Co-Defendant 1, the first instance court of the principal debtor (the check of the check of the check of the check of this case was received as security); and (c) the loan of discounted bills for the bill issued by the client himself, who is not a commercial bill or a loan issued by a third party, is difficult to be deemed to fall under the inherent business territory of the mutual savings bank (see Article 4 of the standard regulations for the mutual savings bank of this case). In full view of all the circumstances revealed in the argument of this case.

In calculating the amount of damages to be compensated by the defendant company, such negligence of the plaintiff shall be considered, and it is reasonable to view that the ratio of negligence of the plaintiff is 70%.

2) Scope of damages

A) Damage incurred by the acquisition of forged promissory notes is equivalent to the discount amount actually contributed to the acquisition thereof, barring special circumstances. If the promissory note is true, it does not amount to the face value that the holder would have received (see Supreme Court Decision 93Da21514, Nov. 8, 1994). This is the same even where the guarantee of the per share is forged.

B) The first amount of damages suffered by Nonparty 1’s act of forging the part of the guarantee of the party units of this case is KRW 1,487,260,274 (loan 12,739,8726) practically contributed by the Plaintiff to Co-Defendant 1 of the first instance trial, Co-Defendant 1 of the first instance trial. Of the amount contributed by the Plaintiff, the amount of damages that the Defendant Company should compensate the Plaintiff for is KRW 446,178,082 ( KRW 1,487,260,274) equivalent to the ratio of the Defendant Company’s fault.

Notwithstanding the above amount, the Defendant Company asserts that the amount of KRW 151,13,691 should be deducted from the amount of damages of the Defendant Company: (a) the amount of KRW 151,113,691, aggregate of the discount charges stated in Nos. 2 through Nos. 15, 2 through 15, 15, which were paid to the Plaintiff from February 13, 2003 to January 12, 204; (b) the amount of KRW 151,113,691 should be deducted from the amount of damages; (c) however, with respect to the amount of damages arising from the Defendant Company’s employer’s liability and the amount of loans owed by the Defendant Company 1 to the same economic purpose, which overlap with one another, the other is also extinguished; and (d) the portion of the joint and several liability owed by the Defendant Company 14 and the amount of KRW 150,000,000,000,000,00.

3) Sub-determination

The Defendant Company is obligated to pay to the Plaintiff damages for delay at the rate of 5% per annum as stipulated in the Civil Act from January 20, 2004, which was the date of the imposition of a reasonable judgment, to April 24, 2007, and 20% per annum as stipulated in the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings, from the following day to the date of the full payment of the obligations.

4. Determination as to an application for the return of provisional payments

The fact that the Defendant Company paid KRW 1,494,049,314 to the Plaintiff on November 9, 2005 by the provisional execution of the judgment of the first instance on November 9, 2005 after the pronouncement of the judgment of the first instance is without dispute between the parties.

However, from January 20, 204 to the above payment date, the principal of damages recognized in this judgment and interest thereon are KRW 486,456,349 [the total sum of KRW 446,178,082 + KRW 446,178,082 Won X 0.05 X (1 year + 293/365 days]. Therefore, the portion in excess of the above principal and interest amount among provisional execution rulings of the first instance court shall be invalidated by this judgment. The plaintiff shall return provisional payment of KRW 1,007,592,965 (1,49,049, KRW 314-486,456, 349) (the total sum from the day following the above payment date to November 10, 2005 to 207.4% of the annual interest rate determined by the Civil Act as to the existence and interest amount from the above provisional execution rulings of the first instance court.

5. Conclusion

The plaintiff's main claim in this case must be dismissed for lack of reasonable grounds. Since the judgment of the court of first instance is unfair, the defendant's appeal is accepted, and the judgment of the court of first instance is revoked, and the plaintiff's main claim is dismissed. The plaintiff's main claim added in the court of first instance is accepted within the scope of the above recognition, and the remainder of the conjunctive claim is dismissed for lack of reasonable grounds. The plaintiff's provisional claim for return of the provisional payment is accepted within the scope of the above recognition, and it is dismissed

[Attachment List omitted]

Judges Kim Jong-dae (Presiding Judge)