[손해배상청구사건][고집1965민,357]
The case denying the employer's liability even if it appears to be an act of duty in appearance.
Even if it appears that it is an act of appearance, it would result in lowering the concept of equity to compensate for damages to a person who has traded or committed an act with the knowledge that it is not an act of original duties of the employee.
Article 756 of the Civil Act
Plaintiff 1 and one other
The Republic of Korea:
Seoul Central District Court (64A554) of the first instance court (Supreme Court Decision 64Da554)
Each appeal shall be dismissed.
The costs of appeal are assessed against the plaintiffs.
The plaintiffs' legal representative shall revoke the original judgment.
The defendant shall pay to the plaintiff 1 an amount of KRW 747,028, KRW 388,514, and an amount of KRW 50 percent per annum from the following day of service to the day of full payment.
The costs of lawsuit are assessed against both the first and second trials, which are assessed against the defendant and a declaration of provisional execution.
원고들의 아들인 소외 1이 피고 관하의 육군 제5사단 제○연대 근무중대에 복무중 1962.12.29. 13:00경 같은 부대소속의 소외 2 상병이 발사한 엠, 원(M.I)소총 실탄에 맞아 사망한 사실은 당사자 사이에 다툼이 없고, 성립에 다툼이 없는 갑 제1호증의 기재에 의하면 소외 1은 그날 공병대의 빈 막사의 감시근무를 하고 있던 소외 2를 찾아가서 소주 10홉을 서로 나눠 마신후에 그가 가지고 갔던 엠원실탄으로 사격연습을 하기로 작정하고 그 막사에서 약 60미터 떨어진곳에 나무표적을 세우고 먼저 소외 2가 실탄 1발을 장진하고 앉아 쏴 자세롤 표적을 향하여 발사하는 순간 왼쪽에서 있던 소외 1이 소외 2의 앞으로 나왔기 때문에 발사된 실탄이 소외 1의 머리에 관통되어 동인이 사망하기에 이른 사실을 인정할 수 있다.
The plaintiffs' above accidents were caused by the non-party 2's failure to discover that the non-party 1 had occurred in his future. The acts of his shooting practice do not belong to his duty of surveillance, and even if they belong to the non-party 2's duty, the defendant asserts that the defendant should compensate for damages suffered by the plaintiffs and the non-party 1 due to his negligence. Thus, it is clear by the above facts that the acts of the non-party 2's shooting do not belong to his original duty or the scope of his duty, and it is hard to view that the non-party 2's act does not constitute a serious duty of care because the non-party 1's act was not a duty of care for the non-party 1's after drinking. The plaintiffs' assertion that the non-party 2's act of launching his firearms at his work site is not a duty of care for the non-party 1's employee, but it is not a duty of care for the non-party 2's worker or the non-party 1's act of care for the non-party 2's duty (the non-party 2's duty of care).
Therefore, it is recognized that the plaintiffs' claims against the defendant for compensation for damages suffered by the non-party 1 and the plaintiffs on the ground of the non-party 2's tort during the execution of duties are not reasonable and there is no reason to judge other issues such as the occurrence of damages. Accordingly, they shall be dismissed, respectively. The judgment of the court below with the same conclusion is just and there is no ground to appeal by the plaintiffs, and it is so decided as per Disposition by applying Articles 384, 95, 89, and 93 of the Civil Procedure Act.
Judges Kim Jong-young (Presiding Justice)