The case holding that if the business director's negligence acquired a defective collateral with respect to the company's claim for the price of goods, and the collateral is cancelled, not only the price of goods after the establishment of the collateral but also the price of credit already incurred prior to the cancellation shall be included in the scope of liability

The case holding that, in the event that a company's business director's belief that the debtor's credit purchase of real estate was conducted without confirming the owner of the real estate for the purpose of collateral security and issued a certificate of completion of registration to the debtor's credit purchase without issuing the certificate of completion of registration, and then the mortgage is cancelled upon issuance of only the copy of the register, the company's purpose of establishing a mortgage is not only the collateral for the goods to be supplied in the future, but also the amount of credit payment already occurred, and thus, the company's purpose is to secure the collateral for the collateral, barring any special circumstances, that there was a sufficient means to secure the credit in addition to the collateral security, since the debtor's financial ability was sufficient to secure the collateral, the company's business director's loss is not caused by the loss of the opportunity to take measures to preserve the credit payment claim against the property other than the real estate which the debtor provided as collateral due to such tort by the head of the company.

Articles 393 and 763 of the Civil Act

Supreme Court Decision 94Da36285 delivered on December 27, 1994 (Gong1995Sang, 667) Supreme Court Decision 94Da60356 delivered on April 12, 1996, Supreme Court Decision 95Da46180 delivered on April 12, 1996

Busan Cosmetics Co., Ltd. (Attorney Kim Jae-chul, Counsel for the defendant-appellant)

Defendant (Attorney Song-young, Counsel for the defendant-appellant)

Seoul High Court Decision 95Na1100 delivered on September 26, 1995

Of the part against the plaintiff in the judgment of the court below, the part against the plaintiff 27,294,300 won and damages for delay thereof are reversed, and this part of the case is remanded to the Seoul High Court. The remaining appeals are dismissed.

The grounds of appeal are examined.

1. On the first ground for appeal

A. According to the reasoning of the lower judgment, the lower court recognized the following facts by comprehensively taking account of the evidence adopted in its judgment.

The Plaintiff Company is a company that manufactures and sells second-hand cosmetics, such as the Hague presses and studs, and Nonparty 1 entered the Plaintiff Company as the head of its business on September 1, 1991 and took charge of sales business and claims management for the cosmetics wholesalers. The Defendant, the above Nonparty 1, at the time of Nonparty 1’s entry into the Plaintiff Company, agreed to compensate jointly and severally with the Plaintiff when Nonparty 1 caused damage to the Plaintiff Company due to intention or negligence while serving in the Plaintiff Company.

From October 28, 191 to November 20 of the same year, the above non-party 1 supplied a hedge press, fashion, etc. to another company run by the non-party 2 and caused the price to be KRW 27,294,300, the plaintiff company demanded the above non-party 2 to provide physical security, and the representative director of the plaintiff company consented to the above non-party 2, which caused the non-party 1 to have the non-party 1 registered the establishment of a mortgage over the real estate provided by the non-party 2. The non-party 1 decided to establish a collateral security on the non-party 2's reliance on the non-party 116 and the non-party 28's real estate purchased at the non-party 1's end of Gangseo-gu Seoul Special Metropolitan City and established a collateral security on the real estate without following the registration of the establishment of a mortgage, and delivered all necessary documents to the non-party 2, such as a letter of contract and power of attorney, and completed the procedure.

On November 27, 191, the above non-party 2, together with the non-party 3 who is his partner, registered the establishment of a mortgage in the name of the plaintiff company, the debtor, the non-party 2, the maximum debt amount of non-party 120,00,000 won to the non-party 4 and the non-party 5 as a security. The non-party 2 provided the above real estate as a security to the non-party 2's company's payment to the non-party 30,000 won to the non-party 5, and if the non-party 2 did not pay the above amount, the non-party 2 provided the above security to the non-party 30,000 won to the non-party 4 and the non-party 5 with the non-party 3 as the non-party 4 and the non-party 5's representative director under the non-party 5's name to cancel the registration of the establishment of a mortgage.

The above non-party 1 received only a copy of the register of the above real estate from the above non-party 2 and submitted it to the plaintiff company, and did not receive a certificate of completion of registration of the establishment of the above mortgage. Meanwhile, the non-party 1 supplied cosmetics equivalent to 2,45,200 won to the non-party 2 on December 4, 1991 after the establishment of the above right to collateral security under the name of the plaintiff company. After that, the non-party 2 received the above right to collateral security from the above non-party 2 as the price for the goods, the plaintiff company went through the voluntary auction procedure (Ycheon District Court Youngcheon-gu 91.2746) upon the execution of the above right to collateral security, but the non-party 4 and the non-party 5 submitted a certificate of termination under the name of the plaintiff company which had been already obtained from the above non-party 2, and the decision of cancellation of the registration of the establishment of the above real estate was revoked by the plaintiff's non-party 1 and the above non-party 4 and the defendant 93996.5.3.

B. Based on the above facts recognized, the lower court determined as follows.

The above non-party 1, as the chief of the business division and the administrator of the claim management of the plaintiff company, was the owner of the real estate that the above non-party 2 ( South-North company) would provide as a security, and if the owner of the real estate is another person, it was believed that the non-party 2 purchased the above real estate as security without any confirmation as to the circumstances during which the owner offered as security, but the above non-party 2, the debtor, the above non-party 2, who was the debtor, was also subject to the procedure for the registration of the establishment of a new mortgage. In addition, the non-party 1, who was issued a copy of the register where the registration was completed without obtaining the registration certificate, was prepared and submitted, and the above termination certificate was made out, regardless of the intent of the plaintiff company, and it was impossible to recover KRW 2,455,200 of the above goods price sold to the non-party 2 after the establishment of the above

However, the plaintiff's assertion that the above non-party 1's sale of cosmetics amounting to 27,294,300 won cannot be recovered since the non-party 1's cancellation of the above right to collateral security was made after the non-party 1 did not receive the above right to collateral security from October 28, 191 to November 20 of the same year, which was before the right to collateral security was established under the plaintiff's name. The plaintiff's claim that the above non-party 1 sold cosmetics amounting to 27,294,30 won before the above right to collateral security was established. Thus, since the non-party 1 was delivered with the above non-party 2 with the above right to share or bill amount equivalent to the above amount, the duty of the head of the non-party 1's business was completed after his request, and even if the non-party 1 had already received the above right to collateral security transaction after the non-party 1's request, the plaintiff's claim that the above non-party 1 had already been established the above right to collateral security transaction.

C. However, according to the facts acknowledged by the court below, it is clear that the defendant agreed with the non-party 1 to compensate the plaintiff company for the damage caused by the non-party 1's intentional or negligent negligence while working for the plaintiff company. Meanwhile, the plaintiff company's intent to establish the establishment of the establishment of the establishment of the close close close close close to the plaintiff company in its name is not only a security for the goods to be supplied in the future, but also an amount of 27,294,300 won which has already occurred in the future, and thus, the purpose of securing a security for this, if there are other special circumstances that the non-party 2, who is the principal debtor, is sufficiently capable of securing a claim as well as the right to collateral, and under the circumstances acknowledged by the court below, the plaintiff company cannot be deemed to have suffered a loss due to the non-party 1's loss by losing the opportunity to take measures to preserve the above credit payment claim against the property other than the real estate that the non-party

Therefore, the above non-party 1, as the head of the business of the plaintiff company, should be deemed to have known or could have known that the plaintiff company would incur a loss equivalent to the above credit amount if the plaintiff company caused the loss of collateral by neglecting the acquisition of the existing credit payment claim as above. Therefore, the above losses should also be deemed to have been in proximate causal relation with the non-party 1. Thus, the court below should have deliberated on whether the plaintiff company would have had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had

2. On the second ground for appeal

According to the reasoning of the judgment below, the court below found that the above non-party 1 suffered losses of 13,784,00 won (the remaining company 2,45,200 + 8,400,000 won plus 2,928,800 won in the transaction with the non-party 7, who is in charge of Kim Awards, while working as the head of the business of the plaintiff company, as well as losses of 2,45,200 won in the transaction with the non-party 7, who is in charge of Kim Awards, as seen in the above paragraph (1) above, and determined that the non-party 1 suffered losses of 13,784,00 won in total (the non-party 1,40,000 won plus 8,400,928,800 won in order to compensate the plaintiff, and that the non-party 1's specific duties (the debt management business of this case, especially with the guarantee contract) were not neglected to secure the damages of the plaintiff 1070 won.

Upon examining the judgment of the court below in light of the records, it is just that the court below set the defendant's limit of liability for fidelity guarantee as KRW 7,00,000,00 in consideration of various circumstances as stated in its holding, and it is not erroneous in the misapprehension of legal principles as to the judgment on the limit of liability for fidelity guarantee made by the court below, with only the circumstances pointed out in the ground of appeal. The ground of appeal as to this point is not acceptable.

3. Therefore, the part of the judgment of the court below against the plaintiff is reversed and remanded to the court below for further proceedings consistent with this Opinion. The remaining grounds for appeal are without merit. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Jong-chul (Presiding Justice)