2012Da112596 Return of deposit claims.

1. A;

2. B

Korean Bank, Inc.

Seoul High Court Decision 2011Na106800 Decided November 16, 2012

April 23, 2015

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Seoul High Court.

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

1. Article 349(1) of the Civil Act provides that Article 450(1) of the same Act shall not apply mutatis mutandis to the establishment of a pledge for a nominative claim unless the pledger notifies the third obligor of the fact of the pledge right, or the third obligor approves it, pursuant to the provision of Article 450, and Article 451 shall not apply mutatis mutandis to the third obligor and other third parties. Paragraph (2) of the same Article provides that where the third obligor has deferred objection and consented to the establishment of a pledge right for a nominative claim, the third obligor may oppose the pledgee by the reason that occurred against the third obligor until the third obligor's consent at the time of deferment of objection. Thus, even if there was no yet set-off, if there was any reason for which set-off can be made at the time of the third obligor's consent, the third obligor may set-off against the pledgee (see, e.g., Supreme Court Decisions 9Da18039, Aug. 20, 199; 200Da3887, Mar. 29, 2002).

In addition, the principle of trust and good faith under the Civil Act is an abstract norm that a party to a legal relationship should not exercise rights or perform obligations in a way that violates the principle of trust and good faith, taking into account the other party’s interest. In order to deny the other party’s exercise of rights or refuse to perform his/her obligations on the ground that it violates the principle of trust and good faith, the other party must have to have provided such trust or to have such trust objectively taken into account, and it should be in a state to the extent that it is not acceptable in light of the concept of justice to enforce the other party’s exercise of rights or to enforce his/her obligations (see, e.g., Supreme Court Decision 2006Da18401, May 26, 200

2. According to the reasoning of the lower judgment and the evidence duly admitted, the following facts are revealed.

A. On April 1, 2009, C Co., Ltd. (hereinafter referred to as “C”) entered into a credit transaction agreement with the Defendant setting the maturity of KRW 1.5 billion (hereinafter referred to as “instant loan”) as of April 1, 2010 (after this, extended to April 1, 201) to receive a loan.

Article 10 (1) of the General Terms and Conditions for Credit Transactions incorporated into the above Credit Agreement provides that "if it is required to discharge its obligations to the defendant due to the arrival of the time limit, the occurrence of the obligation to pay its obligations prior to the time limit under Article 7, or other reasons, the defendant may set off his obligations and the debtor's deposits and other claims regardless of the time limit for such obligations."

B. The Plaintiffs purchased each issue price of KRW 1 billion issued by C on September 30, 2010 and each bonds with warrants (hereinafter “each of the instant bonds”) on September 30, 2013 due date. On October 6, 2010, C created two deposits with KRW 300 million to the Defendant (hereinafter “each of the instant deposits”). In order to secure the repayment of each of the instant bonds, C created a pledge against the Plaintiff A on October 6, 201 for one of its term deposits, and the remainder of each of the instant bonds with warrants with the Plaintiff on October 6, 2011.

D. On October 6, 2010, the plaintiffs C and the pledgee, who were the pledger, submitted a written request for acceptance of the pledge on each of the instant deposit claims (hereinafter referred to as "written request for acceptance of each of the instant deposit claims") stating the phrase "to set up a pledge on behalf of the pledgee for each of the instant deposits and request it by joint signature with the pledgee to issue certificates of deposit." The defendant, the debtor of each of the instant deposit claims, consented to the above request for each of the above pledge.

On the other hand, each written request for the consent of the pledge in this case contains the phrase "if the pledger bears the obligation to return prior to the date of consent of the pledge, I will not raise an objection even if you exercise the right of offset pursuant to the set-off clause such as bank transaction agreement or loan certificate (hereinafter referred to as "the set-off advisory clause in this case") and the phrase "I cannot pay by the maturity even if the pledger consents to the execution of the pledge prior to the expiration date, unless the pledger agrees to the execution of the pledge prior to the expiration date".

E. On March 28, 2011, the Financial Supervisory Service’s request for inquiry about C with respect to the electronic publication system, suspension of transaction of share certificates, change of the period of suspension of transaction due to the occurrence of a reason for delisting, refusal of an auditor’s opinion on an audit report, etc. was publicly announced. On the same day, the Plaintiffs demanded the Defendant to return each of the instant deposit claims on the same day. However, the Defendant did not have the maturity of C’s term deposit which is the object of pledge, on the other hand, the maturity of the Defendant’s lending claim was due, and the maturity of the Defendant’s lending claim was due, and the Defendant rejected the Plaintiffs’ claim that “The Defendant first set-off right was created according to the written request for approval of the pledge and the basic terms and conditions of bank credit transaction.” On April 20, 2011.

3. We examine the above facts in light of the legal principles as seen earlier.

A. When C establishes a pledge against each of the instant deposit claims with the Defendant, it is interpreted that C requested the Defendant to accept each of the instant deposit claims in accordance with each of the instant written request for acceptance of the set-off solicitation assistance in order to satisfy the requirements for establishing a pledge against the Plaintiffs’ deposit claims, and the Defendant accepted it and accepted it, thereby denying and accepting the objection that each of the instant deposit claims may exercise the right of set-off in preference to the pledge against each of the instant deposit claims through the provisions on the reservation of the right of set-off.

In addition, as long as the written request for acceptance of each of the instant pledges containing the offset solicitation support claim between C and the Plaintiffs and the Defendant was prepared, it is reasonable to view that the Plaintiffs agreed to allow the Defendant to offset the obligations owed by C prior to the date of the Defendant’s consent to the pledge pursuant to the offset solicitation support clause, as stipulated in the Bank Credit Transaction Basic Terms and Conditions.

B. Meanwhile, as alleged by the plaintiffs, C opened each of the instant savings accounts solely for the purpose of offering security for the plaintiffs' claims, or trusted that each of the instant savings claims will be used only for the above purpose, such circumstance is limited to internal matters between C and the plaintiffs. There is no evidence to deem that the defendant committed an act to believe that each of the instant savings claims was used only for the purpose of offering security for the plaintiffs' claims. In addition, even if the defendant knew of the purpose and intent of opening each of the instant savings accounts as alleged by the plaintiffs, it is difficult to view that the circumstance alone is insufficient to deem that the defendant was obligated to waive or restrict the right of offset notwithstanding the instant set-off solicitation provision, or to cooperate with the plaintiffs' preferential exercise of the right of offset.

C. In addition, the Plaintiffs are taking account of the circumstances that each of the instant savings claims was not established before the establishment of a pledge and would not have occurred without the establishment of a pledge, or that if the Plaintiffs knew that the instant loans had already occurred at the time of the establishment of a pledge, set-off right would have been exercised, they would have requested as security of deposit claims against other banks.

However, as long as C selects the Defendant bank and opened the instant deposit account and receives the Defendant’s objection under the offset solicitation provision as above, the Defendant’s offset under the offset solicitation provision of this case was already scheduled at the time of opening and establishing the instant deposit account as a result of the Defendant’s free contract between C and the Plaintiff, and in particular,CC had been fully aware of the Defendant’s obligations such as the instant loan, etc. that it owes to the Defendant at that time, and thus, it could have predicted the outcome under the offset solicitation provision of this case.

In addition, according to the reasoning of the judgment below, the representative of the plaintiffs can be aware of the fact that he explained the contents and effects of the offset solicitation subsidy in this case from the person in charge of the defendant bank's counterpart financial branch at the time of the establishment of the pledge, and examined the written request for consent to the pledge in this case. Thus, the plaintiffs can sufficiently confirm the debt details of C at the time of the establishment of the pledge in this case and the defendant's offset possibility by them.

Therefore, with the above circumstances alleged by the plaintiffs, it cannot be deemed that the offset against each of the savings claims in this case by the loans in this case is contrary to the trust of the plaintiffs, and it is also insufficient to view that the defendant did not specifically explain or notify C or the plaintiffs of the possibility of offset by the loans in this case, etc., by clarifying the obligation of the loans in this case, etc., which C bears to the defendant at that time, and the result is contrary to the principle of trust and good faith or equity.

D. Ultimately, in full view of the above circumstances, it is difficult to view that (1) the Plaintiffs, who established a pledge on each of the instant savings claims, and requested the Defendant to consent by the written request for acceptance of the offset solicitation clause in each of the instant case containing a claim for the offset solicitation clause, have to decide on whether to obtain a pledge on each of the instant savings claims deposited to the Defendant under their own responsibility under their own responsibility, and (2) the Defendant, who is not the party to the pledge contract and merely consented to the pledge as the obligor of each of the instant savings claims, is obligated to specifically notify the Plaintiffs, the pledgee, of the circumstances that the Defendant, who is the pledgee, can exercise the right of offset in preference to the Plaintiffs’ pledge, or is liable for tort due to the breach of its duty.

4. Nevertheless, as long as the Defendant reserved the offset solicitation subsidy of this case in the process of accepting the establishment of each deposit account of this case at the same time, the lower court erred by misapprehending the duty of the principle of good faith to notify the Plaintiffs that the Defendant may exercise the right of offset in preference to the Plaintiff’s pledge due to the occurrence of the Defendant’s loan claim of this case against C in order to avoid any damage caused by mistake in the security power of the pledge right, and on that premise, determined that the Defendant is liable for tort due to the breach of duty.

Therefore, the judgment of the court below is erroneous in the misapprehension of the legal principles as to tort due to the principle of good faith, duty of disclosure and breach of duty, etc., which affected the conclusion of the judgment.

5. Therefore, without further proceeding to decide on the remaining grounds of appeal, the part against the defendant among the judgment below is reversed, and this part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-young

Justices Lee In-bok

Justices Kim In-bok, Counsel for the defendant

Justices Go Young-young