[1] Where a company's driver stolens a bank's deposit passbook and a bank's money sheet with a corporate seal affixed thereon and withdraws a large amount, the case holding that the bank recognized the company's claim for return of deposit on the ground that it failed to fulfill its duty of care normally required, such as identifying the authenticity and granting of power

[2] The case holding that the company's liability is limited to 50% of the company's liability for damages in consideration of the negligence of bank that did not fulfill its ordinary duty of care

[1] In a case where a company's driver stolens a bank's deposit passbook and a bank's money sheet with a corporate seal affixed thereon and withdraws a large amount, the case holding that the bank recognized the company's claim for return of deposit on the ground that the bank failed to fulfill its duty of due care normally required, such as identifying the authenticity

[2] The case holding that the company's liability is limited to 50% of the company's liability for damages in consideration of the negligence of bank that did not fulfill its ordinary duty of care, although the company's illegal act of withdrawal of deposits by the company's driver is recognized as a business

[1] Article 470 of the Civil Code / [2] Articles 396, 756, and 763 of the Civil Code

Habrid Telecom Co., Ltd. (Attorney Jeong Byung-hun et al., Counsel for the plaintiff-appellant)

Industrial Bank of Korea (Law Firm Han, Attorney Choi Sung-il, Counsel for defendant-appellant)

July 23, 2004

1. The defendant shall pay to the plaintiff 139 million won with 5% interest per annum from January 6, 2004 to August 20, 2004, and 20% interest per annum from August 21, 2004 to the date of full payment.

2. The plaintiff's remaining claims are dismissed.

3. Of the costs of lawsuit, 50% is borne by the Plaintiff, and the remainder 50% is borne by the Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

The defendant shall decide to pay to the plaintiff 278 million won with 5% interest per annum from November 6, 2003 to the service date of a copy of the complaint of this case, and 20% interest per annum from the next day to the day of full payment.

1. Basic facts

A. From November 21, 200, the Plaintiff Company opened an account in the form of deposit (Account Number: 420-00-01153-, type of deposit: hereinafter “instant deposit”) at the Defendant Bank’s branch from the Defendant Bank from November 21, 2000, and made deposit transactions between the Defendant Bank. The Plaintiff Company deposited KRW 450,782,690 in the instant deposit account as of November 6, 2003, which is the date of the instant tort (hereinafter “instant tort”), and deposited KRW 450,782,690 in the instant deposit account as of November 6, 2003 (hereinafter “the balance of the said account as of the date of closing the argument of the instant case”).

B. From January 2001, Nonparty 1, who had been employed by the representative director of the Plaintiff Company as the driver of the driver's kye kye kye kye kye kye kye kye kye kye kye kye kye kye kye k's kye kye kye kye kye kye kye kye kye kye kye kye kye kye kye kye kye kye kye kye kye k's kye kye kye kye kye kye k's kye kye k's kye kye k's kye k'.

C. Before the commission of the tort in this case, the non-party 1 was aware on November 6, 2004 that the telecom Co., Ltd. should deposit KRW 450 million in the Plaintiff’s deposit account of this case on or around November 6, 2004. On November 5, 2003, the non-party 1 was aware that the Defendant bank’s employees of the Defendant bank would need to deposit KRW 300 million in cash in the way between the Defendant bank’s employees of the Defendant bank’s entry into the instant deposit passbook and the Defendant bank’s employees (the non-party 1 was aware that the bank’s employees could move into the instant deposit passbook of KRW 50 million if the check was withdrawn, up to KRW 50 million, and the Defendant bank’s employees were aware that the bank’s employees were the same one with the passbook of KRW 80,000 (the bank’s employees’ password).

D. At the time of the tort in this case, the employees of the defendant bank stated that the bank was not the name of the plaintiff company, but the bank's face-to-face loan in the deposit sheet submitted by the non-party 1, and did not point out that the deposit amount was not the "390 million won," but the "390 million won," or did not confirm the plaintiff company. The second number of the password was stated double (whether the above number was corrected simply or not is written simply), and thus, the corrective seal should be affixed to the non-party 1 as the corporate seal. However, the non-party 1 was found to have withdrawn the match deposit without a corrected seal (the defendant bank obtained the approval of the two persons if the deposit was paid in excess of 30 million won, and thus, the head of the team and the head of the team agreed to give approval in sequence).

E. After that, the Plaintiff Company illegally withdrawn from Nonparty 1 and recovered KRW 112 million out of the money between them.

F. Meanwhile, on February 5, 2004, Nonparty 1 was convicted of imprisonment with prison labor for 4 years due to a crime of fraud, etc. at the Seoul Southern District Court on February 5, 2004 (the sentencing was changed only in the sentencing of 2003Da5515, and the judgment of conviction became final and conclusive in the appellate court.)

[Ground for Recognition: Facts without dispute, Gap evidence 1 through 5 (including each number), Eul evidence 1 through 4, Eul evidence 8, testimony of the witness party intervention, the purport of whole pleadings]

2. Determination:

A. According to the above basic facts, the Defendant bank is obligated to withdraw the money deposited in the instant deposit passbook from Nonparty 1 to Nonparty 390 million won among the money deposited in the instant deposit passbook, barring any special circumstance, and pay 278 million won, deducting the amount collected by the Plaintiff Company from Nonparty 1, and the delay damages therefrom.

B. Determination on the defenses of Defendant Bank

(1) Representation or Apparent Representation Claim

(A) First, the Defendant bank asserts that Nonparty 1, an employee in charge of financial transaction affairs of the Plaintiff company, withdrawn KRW 390 million out of the instant deposit on behalf of the Plaintiff company, and all remaining deposits were withdrawn by the Plaintiff company, and thus all of the instant deposit claims were extinguished. However, as seen earlier, Nonparty 1’s mere fact that Nonparty 1 used the instant deposit passbook to transfer, deposit, and deposit, was doing so. However, it is insufficient to recognize that the Plaintiff company granted the right to withdraw the instant deposit to Nonparty 1, and there is no other evidence to acknowledge it. Rather, according to the overall purport of the statement and oral argument as stated in subparagraph 3-6, Nonparty 1 is merely an operator, not an employee in charge of financial transaction affairs of the Plaintiff company, and it can be recognized that the Defendant bank committed the instant illegal act by stealing the instant deposit passbook, etc., and therefore, there is no ground for the aforementioned assertion.

(B) In other words, even if Nonparty 1 did not have the authority to act on behalf of the Plaintiff Company in connection with the withdrawal of the instant deposit, the Defendant bank continuously used the instant deposit passbook from around 2001 to deal with the Plaintiff Company’s foreign exchange transaction business, entry, withdrawal, and remittance business. As such, Defendant bank employees knew Nonparty 1 to Nonparty 1 as an employee in charge of the Plaintiff Company’s financial transaction business, and on the grounds that there exist justifiable grounds to believe, Nonparty 1’s withdrawal of the instant deposit also has the effect on the Plaintiff Company.

However, the fact that the Plaintiff Company had Nonparty 1 engage in simple banking business using the instant deposit passbook cannot be deemed to have granted the Plaintiff Company’s power to withdraw the instant deposit to Nonparty 1. On the other hand, there is no evidence to acknowledge that the Plaintiff Company granted the Plaintiff Company’s power to withdraw the instant deposit to Nonparty 1 to the Defendant Bank, or that Nonparty 1, who is merely the Plaintiff’s driver, has the basic power to represent the Plaintiff Company. In addition, Nonparty 1: (a) requested Nonparty 1 to prepare cash in advance using the instant deposit passbook; (b) requested Nonparty 1 to prepare for the instant illegal act; and (c) Nonparty 1 submitted the instant deposit passbook and the cash check stating the name of the Plaintiff Company’s corporate seal and the reported password, it is insufficient to recognize that there is a justifiable reason to believe that the employee in charge of the Defendant Bank has the right to withdraw the instant deposit on behalf of the Plaintiff Company.

Rather, ① The bank’s column for withdrawal of money was indicated as “the Plaintiff Company, not the actual bank owner,” and the amount of withdrawal was 300 million won prior to the previous preparation, but the Defendant bank’s employees did not follow the correction procedure despite the fact that the bank’s personal name was written and password was written (the Defendant bank did not correct the Plaintiff’s personal name and paid the deposit amount to the Defendant bank’s employees to the extent that it did not have a duty of care to verify the authenticity of the Plaintiff Company’s bank’s employees’ deposit. However, it cannot be deemed that the Defendant bank did not have a duty of care to confirm the authenticity of the Plaintiff Company’s bank’s employees, even if it did not appear that the Defendant bank’s employees were to have been aware of the fact that the Defendant bank’s employees were not the corporation’s own account owner, but the Defendant bank’s employees did not have a duty of care to withdraw the amount to the Plaintiff’s bank’s employees to the extent that it did not have a considerable amount of money to the Defendant bank’s employees.

(2) Claim for performance to quasi-Possessor of the claim

The defendant bank stated that the payment of a deposit to the non-party 1 who affixed a seal imprint reported as the holder of the deposit passbook and submitted a written request for payment stating the password is valid as a repayment to the non-party 1. Thus, at the time of the tort of this case, the non-party 1 was holding the withdrawal money ticket and a deposit passbook with the corporate seal impression of the plaintiff company necessary for withdrawal of deposit and the password, but it is hard to see that the non-party 1 was a quasi-Possessor of the deposit account of this case. Thus, it is difficult to see that the repayment to the non-party 1 was a quasi-Possessor of the deposit account of this case. Furthermore, it is effective only when the repayment is done in good faith and without negligence (Article 470 of the Civil Act). As seen above, it is erroneous for the employees of the defendant bank to believe the non-party 1 as the legitimate representative of the plaintiff company and to withdraw the deposit of this case to him. Thus, there is no reason to believe

In other words, according to the deposit transaction basic terms and conditions applicable to the deposit contract of this case, the defendant bank stated that "the bank shall not be held liable for damage to the customer due to a seal impression or signature, forgery, or misappropriation of the deposit contract of this case or any other accident, because the personal identification number stated in the deposit payment application, etc. is closely compared and compared with the seal impression or signature affixed to the deposit payment application, securities or report, etc., or the personal identification number stated in the deposit payment application, etc. is the same as the personal identification or the personal identification number stated in the deposit payment application, etc., and if the bank paid the deposit or handled the business requested by the customer, it shall not be held liable for the damage to the customer." Thus, the defendant bank asserts to the effect that it is not liable for the withdrawal of the deposit of this case to the non-party 1. However, even if the purport of the above contract terms and conditions were not known to the non-party 1 by intention or negligence and did not know that it is not a legitimate applicant for the deposit, and there is no reason to view that the defendant bank as above.

(3) A set-off defense against an automatic claim against the damage claim due to the employer’s liability

(A) Although Nonparty 1, an employee of the Plaintiff Company, did not have any authority to act on behalf of the Plaintiff Company with respect to the withdrawal of the instant deposit, the Defendant Bank submitted to the Defendant Bank the instant deposit passbook, etc. which was stolen as if the Plaintiff Company had legitimate power to act on behalf of the Plaintiff Company, and withdrawn large amounts of money as the deposit withdrawal amount and incurred losses to the Defendant Bank. As such, the Plaintiff Company, as Nonparty 1’s employer, is liable to compensate for damages suffered by the Defendant Bank due to the tort as above by Nonparty 1. Thus, it asserts that the above damage claim against the Plaintiff Company and the instant deposit claim against the Defendant Bank against the Plaintiff Company

(b) Occurrence of damages

A person who has had an employee engage in a certain work using another person shall be liable for damages incurred by the employee to a third party in connection with the performance of his/her work. In this case, the phrase "in relation to the performance of his/her work" shall be deemed to have been engaged in the performance of his/her work without considering the subjective circumstances of the offender, when it appears that the act of the employee objectively constitutes an act of the employee, such as the employer's business activity, the performance of his/her work, or the performance of his/her work, or the performance of his/her duty. Whether it is objectively related to the performance of work should be determined in consideration of the degree of the employee's inherent duty and tort, the degree of the employee's occurrence of risks to damage and the degree of the employer'

In light of the fact that Nonparty 1, who stolen the instant deposit passbook, etc. and withdrawn the instant deposit without any authority, caused damage equivalent to the withdrawal amount to the Defendant bank, as seen earlier. In light of the fact that Nonparty 1, who was an employee of the Plaintiff bank, engaged in the business of deposit transaction with the Defendant bank for a long time, withdrawn the instant deposit in the same manner as the previous ones, and the Defendant bank withdrawn the instant deposit in accordance with the previous practice, it is reasonable to deem that the instant tort was closely connected with the Plaintiff’s act of performing its business, even if it was an act other than Nonparty 1, who is an employee of the Plaintiff company, even though it was an act other than the authority of Nonparty 1, who is an employee of the Plaintiff company, and therefore, the Plaintiff company is liable for damages incurred to the Defendant bank due to the instant tort as the employer of Nonparty 1

In light of the negligence of the employees of the defendant bank at the time of the tort in this case, the defendant bank knew, or did not know, that the tort in this case does not constitute the plaintiff company's execution of its business, and the defendant bank cannot be held liable for the employer's liability due to the tort in this case by the non-party 1 who is an employee of the plaintiff company. In this case, the plaintiff bank was aware of the fact that if the other party to the transaction had paid little attention, the act was not legitimate within its authority and did not necessarily violate the duty of care required for the general public to believe that it was an act within its authority, and therefore, it is reasonable to view that there is little lack of due diligence and need to protect the other party from the perspective of fairness (see, e.g., Supreme Court Decision 9Da30367, Oct. 8, 199). The defendant bank's negligence in this case seems to have been considered in calculating the amount of compensation for damages against the defendant bank in this case, and thus, the non-party 1's allegation in this case is rejected.

(C) Limitation of liability

On the other hand, in the case of Nonparty 1’s tort of this case, the defendant bank was at fault as described in Article 2-2(b)(1)(b) as seen earlier, and such negligence was caused by the occurrence and expansion of damages caused by the above tort, and thus, in determining the amount of damages to be compensated by the plaintiff company, it shall be taken into account (it shall be taken into account that a significant portion of damages suffered by the plaintiff company, the developments leading up to this case, and the degree of negligence of the plaintiff and the defendant, etc.). The liability for the defendant bank of the plaintiff company is limited to 50%.

(D) Scope of damages

The damages suffered by the Defendant bank due to the instant tort are KRW 390 million, which was withdrawn by Nonparty 1, but the fact that the Plaintiff company recovered KRW 120 million from Nonparty 1. As seen earlier, the amount of the instant deposit to be paid by the Defendant bank to the Plaintiff company is KRW 278 million, and thus, the damages to be paid by the Plaintiff company to the Defendant bank are KRW 139 million (278 million x 50%) and damages for delay.

(e) Scope of extinguishment due to a offsetting

The claim of this case against the Plaintiff Company and the Defendant Bank’s damage claim against the Plaintiff Company was in the offset against the tort in this case, and it is evident in the record that the Defendant Bank declared its intention of offset with the briefs dated May 10, 2004. Thus, both claims extinguished on the equal amount on November 6, 2003, when the tort in this case occurred. Accordingly, the claim of this case against the Defendant Bank of the Plaintiff Company remains in the amount of KRW 139 million (=278 million - 139 million).

(f) Sub-decisions

Therefore, the defendant bank is obligated to pay damages for delay calculated on January 6, 2004 (the next day following the claim for payment by delivery of a copy of the complaint of this case) to the plaintiff company at the rate of 5% per annum from the tort day of this case, but there is no evidence to acknowledge that the plaintiff company filed a claim for payment of the deposit claim of this case before the lawsuit of this case. Even if the contract is claimed for the interest, there is no assertion or proof as to the interest agreement, and there is no ground for this part of the claim of this case.) from August 20, 2004 (the date when the defendant bank raised a dispute as to the existence and scope of the deposit claim of this case) to August 20, 204 (the next day from August 21, 2004 to the day of complete payment) by 5% per annum as stipulated in the Civil Act, and from August 21, 2004, to pay damages for delay calculated at the rate of 20% per annum as stipulated in the Act on Special Cases concerning Promotion, etc.

3. Conclusion

Thus, since the plaintiff company's claim of this case is reasonable within the above scope of recognition, it shall be accepted, and the remaining claims shall be dismissed without any grounds.

Judges Shin Sung-sung (Presiding Judge)