2014Na3444 Damage (liability)

A Savings Bank (before the change: A Mutual Savings Bank)

Daegu Jung-gu

B Representative Director

Law Firm Shin & Yang, Counsel for the defendant-appellant

[Defendant-Appellant]

1. CF Asset Management Company:

Yeongdeungpo-gu Seoul

D Representative Director D

2. Stock company E;

Pyeongtaek-si Do-dong

Representative Director F

3. G.

Seoul Central District

Defendant 1, 2, and 3 Attorney

Law Firm (LLC), Lee & Lee LLC, Attorneys Lee Jong-ok and Gyeong-ho

4. H;

Seoul Mapo-gu

Attorney Kim Yong-hwan, Counsel for the plaintiff-appellant

Attorney Lee Jae-soo et al.

Daegu District Court Decision 2013Gahap1830 Decided July 17, 2014

February 22, 2017

April 5, 2017

1. The judgment of the first instance is modified upon the Plaintiff’s request for addition or modification at the trial as follows.

All of the plaintiff's main claim and conjunctive claim against the defendant H are dismissed, and all of the plaintiff's conjunctive claim against the defendant CF Asset Management Stock Company, E and G are dismissed.

2. All costs of the lawsuit shall be borne by the Plaintiff.

1. The primary claim against Defendant H

Defendant H paid to the Plaintiff 700,000,000 won and the amount calculated by applying 5% per annum from September 21, 2011 to the delivery date of a copy of the claim and the ground for the claim of this case, and 15% per annum from the next day to the day of complete payment (the Plaintiff added the claim for return of unjust enrichment to Defendant H at the trial).

2. The gist of the conjunctive claim against the Defendants

The Defendants jointly pay to the Plaintiff 161,840,000 won and the same from September 21, 201 until the delivery date of a copy of the claim of this case and the application for change of the ground for appeal of this case, and 5% per annum from the next day to the date of complete payment (the Plaintiff changed the claim for damages against the Defendants arising from the tort filed by the first instance trial to the non-claim claim at the trial).

3. Purport of appeal

The judgment of the court of first instance is modified in the same manner as the purport of the claim.

1. Basic facts

A. Defendant H entered into a contract with Defendant H on April 15, 2009, on behalf of the Plaintiff bank, on behalf of the Plaintiff bank, on the part of the representative director and the major shareholder of the Plaintiff bank (a mutual savings bank A, a mutual savings bank), to acquire shares issued by the Plaintiff bank owned by Defendant H for a fee. On June 24, 2009, the Governor of the Financial Supervisory Service urged the Plaintiff Company to make a serious warning and caution due to the invalidation of acquisition of the shares and the violation of relevant regulations.

B. On September 21, 201, the Plaintiff bank entered into a contract with Defendant E Co., Ltd. (hereinafter “Defendant E”), and the Plaintiff bank entered into a contract with Defendant E Asset Management Co., Ltd. (hereinafter “Defendant C Co., Ltd.”) to purchase KRW 80,000 (Evidence 2-1) of KRW 400,000 per share among the outstanding shares of Defendant C Co., Ltd. (hereinafter “Defendant C Co.”), and the Plaintiff bank entered into a contract with Defendant G to purchase KRW 60,000 of the outstanding shares of Defendant C Co., Ltd. of KRW 30,000 (Evidence 5,000 per share) (hereinafter “instant purchased shares”) from Defendant C Co., Ltd. of KRW 140,000,00 in total, and each of the instant shares collectively referred to as “the instant shares”).

C. Defendant H purchased 29,00 shares issued by the Plaintiff bank from the Plaintiff bank on September 30, 201, to KRW 967,41,000 per share (33,359 per share) (Evidence A1, 13-8). The Financial Supervisory Service inspected the Plaintiff bank from April 26, 2012 to June 8, 2012, Defendant H paid KRW 700 million out of the share purchase price paid by the Plaintiff bank to Defendant E.

D. Defendant H received a summary order (a fine of KRW 20,00,000) issued by the Daegu District Court 2013 High Court 2013 High Court 2248 and became final and conclusive on April 11, 2013. The criminal facts of the crime are that Defendant H purchased KRW 140,000,000 on behalf of the Plaintiff Bank for KRW 700,000 on September 21, 201, and paid KRW 700,000,000 to I for the purchase of KRW 1,40,000,000 on behalf of the Plaintiff Bank, and obtained credit extension as the other party as the representative director of the Plaintiff Bank.

E. The laws and regulations on the instant case are as stated in the relevant laws and regulations in the attached Form.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 3, 6 through 8, 10, 11 and 13 (including branch numbers; hereinafter the same shall apply)

2. The part of the plaintiff's primary claim against the defendant H

A. The plaintiff's assertion

1) According to Article 37(1) of the former Mutual Savings Banks Act (amended by Act No. 12100, Aug. 13, 2013; hereinafter the same "former Mutual Savings Banks Act"), a mutual savings bank cannot offer credit to a "person who is in a special relationship with a major shareholder by purchasing securities in a nature of financial assistance." Under Article 18-2(7) of the former Mutual Savings Banks Act, a "person who is in a special relationship with a major shareholder without justifiable cause" is prohibited from offering money, services, or other proprietary benefits to a "person who is in a special relationship with a major shareholder." The actual owner and actual seller of the instant shares are Defendant H, a major shareholder of the Plaintiff bank, and KRW 70 million paid by the Plaintiff bank to Defendant E actually belonged to D. Thus, the Plaintiff bank purchased securities from a "person who has a special relationship with a major shareholder" in violation of Article 37(1) of the former Mutual Savings Banks Act or 78(1) of the former Mutual Savings Banks Act without justifiable reason.

2) The purchase price of the instant shares that the Plaintiff bank paid to Defendant E on the ground of the invalid share purchase agreement of the instant case was substantially reverted to D, and D paid the said KRW 700 million to Defendant H, and Defendant H used the said KRW 700 million on September 30, 201 to purchase the shares issued by the Plaintiff bank from the Plaintiff bank. Accordingly, Defendant H was obligated to refund the said KRW 700 million and its delay damages to the Plaintiff bank on the ground that the Plaintiff bank obtained the said KRW 700 million profits through D without any legal cause.

B. Relevant legal principles

According to Article 2 subparagraph 6 of the former Mutual Savings Banks Act, "credit extension" means payment, loan, payment guarantee, purchase of valuable securities in the nature of financing, and other direct and indirect transactions of a mutual savings bank with credit risk in financial transactions as determined by Presidential Decree. In such cases, credit extension on the account of a person, regardless of in whose name the account stand in, shall be deemed a credit extension on the person's own account. In addition, according to Article 2 subparagraph 11 of the former Mutual Savings Banks Act, a major shareholder includes a major shareholder who holds 10/100 or more of the total number of voting shares issued by a mutual savings bank on his/

According to Article 18-2(1)7 of the former Mutual Savings Banks Act, a mutual savings bank shall not provide money, services, or other property profits to large shareholders under Article 37(1) without justifiable grounds, and Article 37 shall not govern the prohibition of credit extension to large shareholders, etc. and the prohibition of provisional payment, while the former mutual savings bank shall not provide credit extension, deposit, etc. or pay provisional payment to a large shareholder (including a shareholder prescribed by Presidential Decree) (the main sentence of Article 37(1) of the former Mutual Savings Banks Act) (the mutual savings bank shall include a large shareholder (including a shareholder prescribed by Presidential Decree) and a person prescribed by Presidential Decree who falls under any of the persons referred to in subparagraph 1 and his/her relatives or special persons prescribed by Presidential Decree (subparagraph 3).

According to Article 30(1) of the former Enforcement Decree of the Mutual Savings Banks Act (amended by Presidential Decree No. 25178, Feb. 11, 2014; hereinafter “former Enforcement Decree of the Mutual Savings Banks Act”), “shareholders prescribed by Presidential Decree” under Article 37(1)1 of the former Enforcement Decree of the Mutual Savings Banks Act refers to shareholders who hold at least 2/100 of the total number of voting shares issued by a mutual savings bank. According to Article 30(2)1 of the former Enforcement Decree of the Mutual Savings Banks Act, a person who is a relative or a specially related person prescribed by Presidential Decree under Article 37(1)3 of the former Enforcement Decree of the Mutual Savings Banks Act includes a sibling of a major shareholder if the major shareholder under Article 37(1)1 of the Act is an individual.

Article 37(1) of the former Mutual Savings Banks Act prohibits a person in a special relationship with a mutual savings bank, such as a major shareholder, from extending credit to a person who is in a special relationship with a major shareholder. Whether a person constitutes a credit extension to a major shareholder, etc. ought to be determined on the basis of a person whose loan belongs to the actual owner, not the nominal lender (see, e.g., Supreme Court Decision 2014Do

C. Determination

1) The facts that Defendant H’s birth was Defendant H’s birth do not conflict between the parties, and according to the evidence No. 13-8, Defendant H held 42.23% of the total number of voting shares issued by the Plaintiff bank at the time of the instant share purchase contract. Accordingly, Defendant H constitutes “large stockholder” as stipulated in Article 2 subparag. 11 and Article 37(1)1 of the former Mutual Savings Banks Act, and D constitutes “a person in a special relationship with the “large stockholder” as stipulated in Article 37 subparag. 3 of the former Mutual Savings Banks Act, and Article 30(2) subparag. 1 of the former Enforcement Decree of the Mutual Savings Banks Act.

2) According to the statement No. 13-4 of the evidence No. 13-2, Defendant G owned shares of the instant case at an investigative agency, and it is acknowledged that Defendant G owned shares of the instant case, and that D lent them to Defendant H by receiving the purchase price of the instant shares from the Plaintiff bank. However, in light of the following circumstances acknowledged by the facts of the basis, Gap’s evidence No. 13-5 and No. 13-7, and the purport of the entire pleadings, the above fact alone cannot be deemed as the actual owner of the instant shares or the actual seller of the instant sales contract, and there is no other evidence to acknowledge this otherwise, the Plaintiff’s primary assertion premised on this premise is without merit.

① At the time of the instant contract for the purchase of shares, the shares owned by Defendant G were actually owned by it. I received the purchase price of shares from the Plaintiff bank and lent the shares to Defendant H.

② At an investigative agency, D stated that the instant shares were not owned by D, and Defendant H also stated to the same effect as D’s statement at an investigative agency.

③ Defendant H received a summary order of 2013 Highest 2248 (A fine of 20,000,000) and became final and conclusive on April 11, 2013. The criminal facts of the crime are that Defendant H purchased Defendant C’s shares of KRW 140,000 on behalf of the Plaintiff Bank, for KRW 70 million on September 21, 201, and paid KRW 700,000 to I for the purchase of KRW 140,000,000 on behalf of the Plaintiff Bank, and personally borrowed KRW 70,00,000,000,000 to obtain credit extension as the representative director of the Plaintiff Bank, and was granted credit extension as the other party.

3. The Plaintiff’s conjunctive claim against the Defendants

A. Whether the former Mutual Savings Banks Act was violated

1) The plaintiff's assertion

According to Article 37 (1) of the former Mutual Savings Banks Act, a mutual savings bank cannot offer credit to a person who has a special relationship with a major shareholder by purchasing securities of a nature of financial assistance. According to Article 18-2 (7) of the former Mutual Savings Banks Act, a mutual savings bank cannot offer money, services, or other financial benefits to a person who has a special relationship with a major shareholder without a justifiable reason. The actual owner and actual seller of the shares in this case are Defendant H, who is a major shareholder of the Plaintiff bank, D, and the purchase price of the shares in this case paid by the Plaintiff bank to Defendant E was substantially reverted to D.

Defendant H on behalf of the Plaintiff bank: (a) under the instant share purchase contract, the Plaintiff bank purchased securities of the nature of financial assistance from D, a person having a special relationship with the Plaintiff in violation of Article 37(1) of the former Mutual Savings Banks Act; (b) extended credit to D; (c) in violation of Article 18-2 Subparag. 7 of the former Mutual Savings Banks Act, Defendant H provided “the act of providing money or financial benefits to a person having a special relationship with the Plaintiff without justifiable grounds; and (d) the rest of the Defendants conspired or aided Defendant H in engaging in the aforementioned tort, and thus, the Defendants are liable to compensate for the damages suffered by the Plaintiff bank as joint tortfeasor.

The amount of damages suffered by the Plaintiff bank is KRW 700,000,000 per share purchase price (5,000 per share) and KRW 538,160,000,00 at the market price of the instant shares at the time of the purchase and sale of the instant shares (= KRW 3,844 won per share x 140,00), which is the difference of KRW 161,840,00 (= KRW 700,000 - KRW 538,160,000). Thus, the Defendants jointly have a duty to pay the Plaintiff bank KRW 161,840,00 and delay damages therefrom.

2) Determination

As seen earlier, D cannot be deemed as the actual owner of the instant shares or the actual seller of the instant sales contract, and there is no other evidence to acknowledge this differently, and the Plaintiff’s assertion of the first preliminary claim based on such premise is without merit without examining any further grounds.

(b) Whether the high-priced purchase is made

1) The plaintiff's assertion

Defendant H, as the representative director of the Plaintiff bank, purchased the instant shares at a higher market price than the market price in the purchase of the instant shares in violation of the above duty, and thereby, Defendant H, as the Plaintiff bank, was liable to jointly pay the Plaintiff bank 161,840,000 won (=700,000 - 538,160,000 - 538,160,000 won), which is the difference between the purchase price and the market price of the instant shares, and 161,840,000 won (i.e., the difference between the purchase price of the instant shares and the market price of the instant shares). The rest of the Defendants conspired to commit such tort and aiding and abetting the Defendant H to pay the Plaintiff bank 161,840,000 won and damages for delay.

2) Determination.

According to the facts revealed earlier, the sales price under the instant contract was 5,00 per share, and according to the results of the appraisal commission and the results of appraisal supplementation with the appraiser J, the fact that the net asset value per share of the instant shares at the time of the instant contract for the purchase of shares (as of September 21, 201) is 3,844. However, in light of the following circumstances acknowledged by the statements in subparagraphs 6, 12, and 1 through 4, and the overall purport of pleadings, the above facts alone are insufficient to acknowledge that the price under the instant contract for the purchase of shares (as of September 21, 201, the price per share 5,00 won per share) is higher than that which would be unreasonable in light of sound social norms and commercial practice, and there is no other evidence to acknowledge this otherwise, Defendant H’s purchase of shares on behalf of the Plaintiff bank cannot be deemed as tort by the representative director, and therefore, the Plaintiff’s assertion is without merit.

(1) The value of shares of a company shall not be determined only by net asset value, but also by various factors, such as profit value, outlook of the company, degree of difficulty of permission, degree of difficulty of the applicant for the purchase, and special licenses.

② Defendant C Co. is a real estate asset management company established under the Financial Investment Services and Capital Markets Act with the authorization of the Financial Services Commission in 2010, and its capital amount reaches KRW 10.1 billion.

③ At around 2010, Korea Bank, Gwangju Bank, Solomon Mutual Savings Bank, Geumho Comprehensive Financial Co., Ltd. purchased KRW 100,000 through KRW 200,000 per share of Defendant CFC shares. After referring to the above purchase price, the Plaintiff Bank purchased KRW 140,000 per share of the instant shares on September 21, 201. The conclusion is that the Plaintiff Bank purchased KRW 5,000 per share of KRW 4.

The plaintiff's primary claim against the defendant H added in the trial of the court and the conjunctive claim against the defendants that the plaintiff changed in the trial of the court of the court of the court of the court of the case are all dismissed, and it is so decided as per Disposition by the court of the first instance.

Article 5 (Presiding Judge)

Jinaba

Gender Standards

Site of separate sheet

Related Acts and subordinate statutes

Gu Mutual Savings Banks Act (amended by Act No. 12100, Aug. 13, 2013)

The definitions of terms used in this Act shall be as follows:

6. The term "credit extension" means payment, loans, payment guarantee, purchase of securities in the nature of financial support, and other financial transactions;

direct and indirect transactions by a mutual savings bank with credit risk, as prescribed by Presidential Decree;

credit extended for the principal's account, no matter whose name the account stand in.

be regarded as such.

11. The term "large stockholder" means a stockholder falling under any of the following items:

(a) The largest shareholder: The principal and his/her Presidential Decree based on the total number of voting shares issued by mutual savings banks;

(hereinafter referred to as the "specially related person") no matter whose name the person has a specially related relationship;

shares held on its own account are the greatest number of shares held on its own account

(b) A major shareholder: A voting share issued by a mutual savings bank, no matter whose name the account stand;

Mutual savings by means of appointment, dismissal, etc. of executives or persons who hold not less than 10/100 of the total number of stocks;

stockholders who exercise de facto influence over major affairs of management of the bank, shall be determined by Presidential Decree.

the Corporation.

[Specialized Amendment, March 22, 2010]

No mutual savings bank shall commit any of the following acts:

4. Extension of credit for direct or indirect purchase of the shares of a mutual savings bank, or extension of credit for such purchase;

Extension of credit secured by shares of a mutual savings bank;

7. Money, services, or other property profits to the large stockholders, etc. under Article 37 (1) without justifiable grounds;

act of providing such information: Provided, That the prohibition of credit extension to major shareholders and the prohibition of provisional payment

Article 37 shall apply mutatis mutandis.

[Specialized Amendment, March 22, 2010]

Article 37 (Prohibition of Credit Extension, etc. to Large Stockholders, etc.)

(1) A mutual savings bank shall represent any of the following persons (hereinafter referred to as "large shareholder, etc."):

(1) No credit extension, deposit, etc. or provisional payment shall be made by a mutual savings bank, and major shareholders, etc. shall

No person shall receive credit, deposits, etc. from or receive provisional payment: Provided, That a person for a major shareholder, etc. shall be a person;

deposit, etc. and bond collection prescribed by Presidential Decree, which are not subject to the prohibition;

(b) Credit extension prescribed by Presidential Decree for the welfare of employees shall be excluded herefrom.

1. Large shareholders (including shareholders prescribed by Presidential Decree);

2. Executives or employees of mutual savings banks;

3. A relative or special relationship prescribed by Presidential Decree with a person under subparagraphs 1 and 2 or a mutual savings bank.

person.

[Specialized Amendment, March 22, 2010]

Article 39 (Penalty Provisions)

(2) Any of the following persons shall be punished by imprisonment for not more than five years or by a fine not exceeding 50 million won:

section 3.

3. A person who violates Article 37 (1) or (2) and a person who receives credit extension or a provisional payment from the former;

Stockholders, etc.

(4) Any of the following persons shall be punished by imprisonment with labor for not more than one year or by a fine not exceeding ten million won:

section 3.

7. A person who commits an act falling under any subparagraph of Article 18-2, in violation of the said Article;

[Specialized Amendment, March 22, 2010]

Mutual Savings and Finance Company Act

Article 37 (Prohibition of Loans, etc. to Investors, etc.) Mutual savings and finance companies shall not grant loans, etc. or pay provisional payments to persons falling under any of the following subparagraphs: Provided, That the same shall not apply to loans, etc. prescribed by Presidential Decree, which are unlikely to recover claims or for employees' welfare, prescribed by Presidential Decree:

person only if such person

2. Executives and employees of mutual savings and finance companies;

3. A relative or special relation prescribed by Presidential Decree with a person referred to in subparagraphs 1 and 2 or a mutual savings and finance company;

A.

[Specialized Amendment, January 13, 1998]

Article 3-2 (Scope of Deposits, etc. and Credit Extension) of the former Enforcement Decree of the Mutual Savings Banks Act (Amended by Presidential Decree No. 25178, Feb. 11, 2014)

(2) "Those prescribed by Presidential Decree" in the former part of subparagraph 6 of Article 2 of the Act means any of the following cases:

institution: Provided, That deposits, etc. referred to in subparagraph 2 of Article 2 of the Depositor Protection Act shall be excluded;

outside shall be outside.

1. Purchase of corporate bonds (excluding those issued by public offering);

2. Purchase of corporate bills (referring to bills issued by enterprises for the purpose of raising funds);

3. Guarantee under subparagraph 1 of Article 11-2;

4. Call loan [the whole bank, or a financial institution (which shall comply with Article 38 of the Act on the Establishment, etc. of Financial Services Commission) for not more than 30 days.

(d) Short-term financing transactions between institutions subject to the inspection of the Financial Supervisory Service; hereinafter the same shall apply)

credit means credit, and it shall be made through the Korea Federation of Savings Banks (hereinafter referred to as the "Federation") under Article 25 of the Act.

call loan transactions which do not designate the other party in the call loan transactions are excluded;

[Specialized Amendment on September 20, 2010]

Article 29 (Credit Extension to Large Shareholders, etc.)

(2) "Credit extension prescribed by Presidential Decree" in the proviso to the part other than the subparagraphs of Article 37 (1) of the Act means the following:

The term "those" means those falling under any of the following subparagraphs:

1. In cases of a person referred to in Article 37 (1) 1 through 3 of the Act, the representation of the person to his/her mutual savings bank;

credit extended on the security of deposits, etc.

2. Major shareholders referred to in Article 37 (1) 1 of the Act and special cases referred to in Article 30 (2) 5 through 8;

credit extended by a person in a relationship with such person on the security of the deposit, etc. of such bank

3. Credit extended to employees of the mutual savings bank for their welfare, falling under the following items: Provided, That in cases of mutual savings:

1. Credit extended to an individual borrower under items (a) through (c) within the limits of 15/100 of its equity capital;

The total amount shall not exceed 50 million won.

(a) Ordinary loan up to 20 million won;

(b) Housing loan up to 50 million won;

(c) Loans not exceeding 50 million won to compensate for losses suffered by a mutual savings bank due to the act of the relevant employee;

Article 30 (Scope of Large Shareholders, etc.)

(1) "Stockholder prescribed by Presidential Decree" in Article 37 (1) 1 of the Act means a shareholder who has voting rights in a mutual savings bank.

Shareholders who hold not less than 2/100 of the total number of issued and outstanding shares.

(2) "A relative or a person in a special relationship prescribed by Presidential Decree" in Article 37 (1) 3 of the Act means "a person in a special relationship."

Any of the following persons:

1. Where a large shareholder under Article 37 (1) 1 of the Act is an individual, a lineal ascendant or descendant and a large shareholder;

A spouse, parents of a major shareholder, brothers and sisters of a major shareholder, their spouses, and lineal descendants of a major shareholder.

2. Where a large shareholder under Article 37 (1) 1 of the Act is a corporation, etc., any of the following:

person who falls under

(a) Executive officers of the relevant corporation, etc., lineal ascendants and descendants, and spouses of executive officers, parents of executive officers, and executive officers;

The spouse of lineal descendants

(b) At least 30/100 of the total number of issued stocks or total amount of investment of the relevant corporation, etc.;

3. Lineal ascendants and descendants, and spouses of executive officers (referring to executive officers of mutual savings banks; hereafter the same shall apply in this subparagraph);

The spouse of an officer, or the spouse of a lineal descendant;

[Specialized Amendment on September 20, 2010]