Plaintiff (Seoul General Law Firm, Attorney Kim Tae-tae, Counsel for the plaintiff-appellant)

Defendant Bank

March 18, 2005

Daejeon District Court Decision 2002Gadan38511 Delivered on June 17, 2003

1. Of the judgment of the court of first instance, the part against the defendant in excess of the amount ordered to be paid below is revoked, and the plaintiff's claim corresponding to the above revocation

The defendant shall pay to the plaintiff 44,235,212 won with 5% interest per annum from September 3, 2002 to April 8, 2005, and 20% interest per annum from the next day to the day of full payment.

2. The plaintiffs' appeal and the defendants' remaining appeals are dismissed, respectively.

3. Two minutes of the total costs of the lawsuit are assessed against the Plaintiff, and the remainder is assessed against the Defendant, respectively.

1. Purport of claim

The defendant shall pay to the plaintiff 88,470,425 won with 5% interest per annum from the day following the service of a copy of the complaint of this case to the day of a judgment of the court of first instance, and 20% interest per annum from the next day to the day of full payment.

2. Purport of appeal

A. The plaintiff shall revoke the part of the judgment of the court of first instance against the plaintiff. The defendant shall pay to the plaintiff 30,964,649 won with 5% interest per annum from the day following the delivery of a copy of the complaint of this case to the day of the judgment of the court of first instance, and 20% interest per annum from the next day to the day of complete payment.

B. Defendant: The part of the first instance judgment against Defendant is revoked, and the Plaintiff’s claim corresponding to the above revocation portion is dismissed.

1. Facts of recognition;

The following facts may be acknowledged if there is no dispute between the parties, or if there is no counter-proofs between Gap's 1 to 10, Eul's 1 to 12 (including provisional numbers), and the testimony of non-party 1 of the first instance trial witness by adding the whole purport of the pleadings to the non-party 1's testimony.

A. On April 2001, Nonparty 4 issued a copy of the Plaintiff’s resident registration certificate and the Plaintiff’s name, upon Nonparty 2’s request to create a deposit passbook and cash withdrawal card under the Plaintiff’s name. At the time of April 8, 2001, the Defendant bank (the Plaintiff bank was a stock company at the time) bank was at the time, but the Defendant bank was at the time, on November 1, 2001, issued a copy and seal of the said resident registration certificate upon request by Nonparty 1, his wife, who was working at the Gangseodong branch of Daejeon Metropolitan City (the Defendant bank was merged with the Defendant bank).

B. On April 9, 2001, Nonparty 1, using a copy and seal of the above resident registration certificate, opened an ordinary deposit application and a cash withdrawal card in the Plaintiff’s name, and issued a deposit passbook and a cash withdrawal card. On the same day, Nonparty 2, who visited the transmitting river branch, issued a deposit passbook and a cash withdrawal card and a seal (hereinafter “deposit passbook, etc.”) issued to Nonparty 2, who visited the said river-dong branch as above.

C. In the above process, Nonparty 1 did not fully verify whether the applicant requested the issuance of a deposit passbook or a person who caused the receipt thereof as the Plaintiff himself/herself, and whether the applicant was the Plaintiff himself/herself, if not the Plaintiff himself/herself, or whether the person was legally delegated by the Plaintiff. In addition, even in the process of issuing a deposit passbook, Nonparty 1 did not fully take measures such as checking whether the Plaintiff is the Plaintiff himself/herself or whether the Plaintiff was duly delegated by the Plaintiff through comparison with the photo on the copy of the resident registration certificate submitted or already submitted.

D. The Plaintiff is a doctor operating (mutual omitted) general affairs in Daejeon Metropolitan City. From December 9, 1997, the Plaintiff was employed Nonparty 3 as the office manager and was in charge of patient care and medical expenses claims. In the case of an insurance patient, when Nonparty 3 requested medical expenses from time to time to time with all documents, the insurance company transferred them to the Plaintiff’s deposit account (Account Number omitted) opened in the Agricultural Cooperatives Federation by the insurance company. The Plaintiff’s wife was in possession of the deposit passbook and the seal of the said deposit account and received medical expenses by withdrawing the remitted medical expenses.

E. However, upon the opening of the instant deposit account, Nonparty 3 requested some insurance companies, including Yangyang Fire & Marine Insurance Co., Ltd. to remit medical expenses to the instant deposit account with a copy of the said deposit passbook, and received a total of KRW 88,470,425 won from April 10, 2001 to April 26, 2002 on 62 occasions, and then withdrawn and used the said deposit passbook (after Nonparty 3 requested Nonparty 2 to issue the said deposit passbook to Nonparty 2, it appears that Nonparty 1 issued the said deposit passbook, etc.) using the said deposit passbook, etc., and then escaped when such embezzlement was discovered on May 202.

F. The treatment costs received by the Plaintiff from the insurance company during the period of the above embezzlement are KRW 308,468,611, including the amount embezzled by Nonparty 3.

G. Article 3(1) of the Act on Real Name Financial Transactions and Guarantee of Secrecy (hereinafter referred to as the “Real Name Financial Transactions and Guarantee of Secrecy”) provides that “a financial institution shall conduct a financial transaction by means of the trader’s real name (hereinafter referred to as the “real name”) in order to prevent financial transactions by a pseudonym or borrowed name.” Article 3(3) of the same Act and Article 3 subparag. 1 of the Enforcement Rule of the same Act provide that a person subject to issuance of a resident registration certificate shall conduct a real name verification as a resident registration certificate in the case of an individual. Accordingly, a financial institution must confirm whether a person is the principal through a resident registration certificate at the time of opening a deposit account, and if a person other

2. Determination

(a) Occurrence of liability for damages;

(1) Since a deposit account is used for a financial transaction and it is sufficiently anticipated that a bank account which uses another person's name is opened, and if such a deposit account is issued, a person who uses the name of another person can engage in a financial transaction that harms the property or credit of the person who uses the fraudulent name. As such, in opening a deposit account and issuing such a deposit account, a person working for a financial institution has the duty of care to prevent the opening of a deposit account by misappropriation of another person's name by ascertaining whether the applicant for the opening of the account and the recipient of the deposit account is the account holder or whether he/she is duly authorized by the principal, not the account holder.

(2) However, according to the above facts, the non-party 1, an employee of the defendant bank, did not verify whether the applicant for the issuance of the above deposit passbook and the person who caused the receipt of the above deposit passbook, in violation of the Act on the Real Name Financial Transactions, were either the plaintiff himself/herself or the plaintiff lawfully delegated it, and issued the above deposit passbook to the non-party 2. Accordingly, the non-party 3's above embezzlement was possible. Thus, a proximate causal relation between the above act of the non-party 1 and the damage suffered by the plaintiff is acknowledged. Thus, the defendant bank, an employer of the non-party 1, is liable to compensate for the damage suffered by the plaintiff due to the above illegal act of the

B. Limitation on liability

However, the non-party 3 is in the position of the employee responsible for the direction and supervision of the plaintiff, and in particular, it is reasonable to limit the defendants' responsibility under the concept of fairness to the extent of 50% of the total damages, taking into account the following circumstances: (i) even though the non-party 3 embezzled a large amount of money equivalent to approximately 29% of the total medical expenses received from the insurance company during the short period of one year (i.e., 88,470,425 won/ 308,468,61 won) from the insurance company.

3. Conclusion

Therefore, the defendant is obligated to claim against the plaintiff about 44,235,212 won (=8,470,425 won x 0.5 won) and about 44,235,212 won (i.e., the delivery day of a copy of the complaint of this case x 0.5), which is the day following the delivery day of the copy of the complaint of this case, to pay 5% per annum under the Civil Act from September 3, 2002 to April 8, 2005, and 20% per annum under the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the next day to the day of complete payment. Thus, the plaintiff's claim against the defendant is justified within the above recognized limit, and the remaining claims are dismissed as there is no justifiable reason. Accordingly, the plaintiff's claim against the defendant is revoked, and all of the plaintiff's appeal and the defendant's remaining appeals are dismissed. It is so decided as per Disposition.

Judges Kang Young-ho (Presiding Judge)