2014Da231767 Compensation, etc.

person

Samsung Life Insurance Co.

Korea

Seoul High Court Decision 2014Na2022336 Decided October 29, 2014

September 10, 2015

The judgment below is reversed and the case is remanded to Seoul High Court.

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

1. As to the defendant's second ground for appeal

A. Article 760(3) of the Civil Act imposes joint tort liability on an aiding and abetting person by deeming the aiding and abetting person to be a joint tortfeasor. Aid and abetting refers to all direct and indirect acts facilitating a tort, and it is possible to assist by negligence in the area of civil law where negligence is the same as that of an intentional act in principle for the purpose of compensating for damages. The content of negligence in this case refers to a breach of duty on the premise that there is a duty of care not to assist a tort. However, as aiding and abetting another person’s tort by negligence, in order to impose joint tort liability, proximate causal relation should be recognized between aiding and abetting act and the victim’s damages should be recognized. In determining proximate causal relation, the likelihood of predicting the situation that facilitate the tort by negligence, as well as the impact of the damage caused by negligence on the victim’s trust, degree of contribution to the formation of the victim’s own trust, and whether the victim was able to prevent damage by itself, etc. (see, e.g., Supreme Court Decision 91Da1597, Mar. 27, 2014).

Therefore, in a case where an account is opened by gathering another person’s name, it cannot be deemed that a financial institution should always be liable for damages equivalent to the amount deposited and withdrawn through the original account solely on the ground that the financial institution failed to undergo the verification procedure, etc. In order to recognize liability for damages, there is a proximate causal relation between the violation of the financial institution’s duty of care and the loss incurred to the victim or a third party. The proximate causal relation should be established by comprehensively taking into account the following factors: (a) the purpose and legal interest of the Acts and subordinate statutes and other rules of conduct that erases the duty of care; (b) the contents of tort using the account; (c) the degree of contribution to the account to the account’s account; (d) the degree of damage to the account’s account’s account’s account’s account’s account’s account’s account’s account use and transaction with many and unspecified persons; (e) whether the account’s account was established without due process of identification; and (e) the degree of losses incurred to an unspecified financial institution’s account’s account’s account’s 20-specific purpose and responsibilities arising from various acts.

B. The lower court comprehensively based on the evidence as indicated in its holding: (1) (1) opened a securities account in the name of E in the name of E using forged E’s resident registration certificate; (2) opened a forged E’s resident registration certificate and opened a deposit account in the name of E in the name of E (hereinafter “instant deposit account”); and (3) changed the Plaintiff’s deposit account from April 25, 201 to January 25, 201, it is difficult for A et al. to view that the Plaintiff was liable for damages incurred to the Plaintiff’s employee to obtain the Plaintiff’s resident registration certificate under the Plaintiff’s name and altered deposit account; and (4) recognized that the Plaintiff was liable for damages incurred to the Plaintiff’s deposit account under the Plaintiff’s own name (hereinafter “instant deposit account”) after obtaining the Plaintiff’s resident registration certificate under the Plaintiff’s name and the Plaintiff’s deposit account under the name of E/S account; and (2) determined that the Plaintiff was liable for damages incurred to the Plaintiff’s deposit account under the Plaintiff’s own name and the Plaintiff’s deposit account.

C. However, examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court’s determination that recognized causation between the Plaintiff’s damage and the negligence of post office employees is difficult to accept for the following reasons.

(1) Even if there was negligence by which the Defendant’s post office employee failed to verify the E himself at the time of opening the instant account, in order to impose the Defendant’s responsibility for aiding and abetting the Defendant to commit the crime of defraudation of loans by A, etc., it is insufficient to say that the Defendant’s post office employee opened the instant account to A, etc. and issued the instant passbook. In addition, it is difficult to anticipate that the said post office employee committed the act of defraudation of loans through the instant account and facilitate the said illegal act at the time of opening the instant account. Moreover, proximate causal relation should be acknowledged in light of various circumstances, such as the circumstances leading up to the instant loan, the degree of contribution to the instant loan or the formation of the Defendant’s trust, and whether the Defendant could have easily prevented damage on his own.

(2) However, even based on the reasoning of the judgment below as seen earlier and the evidence duly admitted, it is doubtful whether the employee of the Defendant post office beyond entering and withdrawing through the instant account and passbook at the time of opening the instant account, and it can be readily concluded that the instant account and passbook were used as a means of verifying E in relation to the contract for electronic financial transaction services with the Defendant and the issuance of the instant security card with another financial institution in the course of receiving the instant loan from the Defendant insurance company, which is a other financial institution.

(3) In addition, the circumstances cited by the lower court as the negligence of the Defendant’s post office employees at the time of opening the instant account are indicated as “the head of Gangseo-gu Office, Gangnam-gu, which is not the head of Gangnam-gu, Seoul Special Metropolitan City Office,” and the pattern of alone was not fully discovered even if the true resident registration certificate was different from the true resident registration certificate. This error is likewise applicable to the Plaintiff’s employee in charge who confirmed the forgery of the instant resident registration certificate when A, etc. entered into an electronic financial transaction service contract with the Plaintiff and issued the instant security card. Meanwhile, the Defendant’s post office employees, like the Plaintiff’s employee, can be seen as having verified the forgery or alteration of the said resident registration certificate through “1382 telephone, which is the means of verifying the forgery or alteration of the resident registration certificate provided by the Safety Administration,” and it is difficult to readily conclude that the Defendant’s above Defendant’s employee’s negligence was grossly negligent. In light of this, it is difficult to deem that the Plaintiff’s employee’s negligence in concluding

In addition, the Plaintiff did not properly verify the circumstances such as the actual or forged name of E at the time of the issuance of the instant security card, despite having been holding information on the name of the one who was provided with such personal information at the time of the purchase of the E, and the one whose name was entered in the forged resident registration certificate, etc. In addition, the Plaintiff did not properly verify the fact that the date of subscription and the date of publication of the instant passbook was altered by A, etc. to meet the requirements for three months after the issuance. Therefore, the Plaintiff could have easily prevented damages equivalent to the instant loan if he had paid due attention at the time of the transaction related to the instant loan with A, etc.

In addition to these circumstances, in light of the fact that the conclusion of an electronic financial transaction service contract and the issuance of the security card of this case directly caused the instant loan and the occurrence of damages, it is doubtful whether the Defendant post office concluded an electronic financial transaction service contract separately from the Plaintiff’s employees’ gross negligence in the course of verifying the resident registration of the Defendant post office employees and concluded an electronic financial transaction service contract, and deemed the cause of the instant loan and the damages incurred therefrom as the cause of the hindrance to the identification in the course of issuing the instant security card.

(4) In addition, the instant loan was made through the Internet, and thus, it is an essential premise for an authorized certificate, an electronic financial transaction service contract, and a security card of this case. Therefore, the negligence and the Plaintiff’s negligence in relation to the instant loan can be said to have directly caused the instant loan. On the other hand, the instant account is merely used as a means of receiving the instant loan.

(5) Therefore, considering the above circumstances in light of the legal principles as seen earlier, even if the Defendant was negligent in verifying the resident registration certificate which was established and tried to open the account of this case, it is difficult to view that there is a proximate causal relation between the negligence and the loan of this case and

D. Nevertheless, the lower court erred by misapprehending the legal doctrine on the causation between the damage incurred by the Plaintiff and the negligence of the Defendant’s post office employees solely on the grounds as seen earlier. In so doing, the lower court erred by misapprehending the legal doctrine on the negligent aiding and abetting liability and the proximate causal relation between the tort and the damage, which affected the conclusion of the judgment.

The ground of appeal pointing this out is with merit.

2. Conclusion

Therefore, without further proceeding to decide on the defendant's remaining grounds of appeal and the plaintiff's grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent

Justices Kim Jae-young

Justices Lee In-bok

Justices Kim In-bok, Counsel for the defendant

Justices Go Young-young