글번호 : 401  국제법 연구자료 ㅡ 한국 대법원 판결 Damages, etc. 작성자  관리자  작성일   2016-07-12 11:39:04 홈페이지   첨부파일   첨부파일 없음 Supreme Court Decision 2015Da234985 Decided May 12, 2016 Damages, etc. 【Main Issues and Holdings】 [1] Whether negligent aiding and abetting is possible in the area of civil law (affirmative), and if so, the content of negligence / Standard of determining the reasonable causation between negligent aiding and abetting and tort damages [2] Standard of determining whether there is a reasonable causation between a financial institution’s violation of duty of due care in opening an appropriated account and the infliction of injury on the party from whom the account was appropriated or a third party 【Summary of Decision】 [1] Article 760(3) of the Civil Act imposes a joint tort liability on an aider and abettor of a tort by deeming the same to be a joint tortfeasor. Aiding and abetting refers to all direct and indirect action making the commission of a tort easy. In the area of civil law, in principle, negligence is equivalent to intent for purposes of damage compensation. As such, in civil law, negligent aiding and abetting is possible. The content of negligence in such cases refers to a violation of the duty of due care not to assist in a tort, on the premise that such a duty exists. Imposition of a joint tort liability on grounds of negligently aiding and abetting a tort by another requires the finding of a reasonable causation between the aiding and abetting and the tort, on the one hand, and on the other, the victim’s injury. When determining reasonable causation, in addition to the foreseeability of the negligent act’s facilitation of a tort, full account shall be taken of the overall circumstances, including the impact of the negligent action on giving rise to the injury, the extent to which it contributed to the victim’s reliance, and whether the victim could have easily prevented the injury on his/her own, out of caution not to expand liability out of proportion. [2] In cases where a bank account was opened by appropriating another’s name, the mere fact that the financial institution failed to scrupulously conduct verification procedure on the transaction principal shall not necessarily mean that the financial institution is to be held liable for damages for the entire amount of money deposited in, and withdrawn from, the appropriated account. Rather, to find damage compensation liability, a reasonable causation shall be found between the financial institution’s violation of its duty of due care and the injury on the part of the party whose name was appropriated or a third party. To find a reasonable causation, in addition to the general probability of giving rise to the outcome, full account shall be taken of various factors, including the purpose of the laws, regulations, and norms imposing duty of due care to verify the principal and the legally protected interest, the content of the tort using the account and the extent the account contributed to the tort, whether the counterparty verified the account user and how the account was used, and the nature of the injured interest and the extent of injury. There may be a plethora of developments leading up to, and the actual patterns of, the use in transactions with unspecified masses of an appropriated account opened by reason of a financial institution’s failure to scrupulously conduct a principal verification procedure. Grounding the imposition of damage liability on a financial institution solely in the mere fact of a criminal offense of using an appropriated account would lead to indiscriminately pressing the financial institution even on those myriad faulty transactions arising from the failure of unspecified masses to scrupulously conduct verifications and credit-checks on their counterparties, which should have been their own responsibility, or those injuries arising from myriad different forms of property infringement, etc., against unspecified masses. This would go beyond the scope not only of the financial institution’s foreseeability of the outcome, but also of the purpose and legally protected interest of the behavioral norms obligating financial institutions to verify the transaction principal. Thus, all these factors shall be taken into account when determining the reasonable causation between the fault on the part of the financial institution by opening an appropriated account without scrupulously verifying the transaction principal, on the one hand, and on the other, the infliction of injury arising from a variety of forms of wrongdoing. ㅡㅡㅡㅡㅡㅡㅡㅡㅡㅡㅡㅡㅡㅡㅡㅡ 고도의 국제법 전문가 그룹 국제법률연구원 International Law Research Institute. Website. www.ilri.co.kr Tel. 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