2. B

2. The plaintiff

A. As regards Defendant B’s KRW 600,088,143 and KRW 343,691,700 among them, 5% per annum from June 30, 2011 to August 18, 2015; 236,296,43 won per annum from January 21, 201 to August 18, 2015; and 20% per annum from the following day to the date of full payment;

B. Defendant Jincheon-gun, jointly and severally with Defendant B, shall be 245,494,071 won and the amount calculated by applying 5% per annum from August 6, 2011 to August 18, 2015, and 20% per annum from the following day to the date of full payment.

sub-payment.

3. The plaintiff's remaining main claims against the defendants and the remaining conjunctive claims against the defendant B are all dismissed.

4. Of the total litigation costs, 10% of the portion arising between the Plaintiff and the Defendant B shall be borne by the Plaintiff, the remainder by the Defendant B, and 60% of the portion arising between the Plaintiff and the Defendant Jincheon-gun by the Plaintiff, and the remainder by the Defendant Jincheon-gun.

5. Paragraph 2 can be provisionally executed.

A. The primary purport of the claim

The Defendants jointly and severally pay to the Plaintiff 672,00,000 won and the amount calculated by each of 5% per annum from June 29, 2011 to the service date of a copy of the application for modification of the claim and the cause of the claim in this case, and 20% per annum from the next day to the day of full payment.

B. Preliminary purport of claim

Defendant B shall pay to the Plaintiff 690,100,000 won and 670,000,000 won among them, 5% per annum from January 11, 2012 to the service date of a copy of the application for change of the purport of and cause for appeal in this case, and 20% per annum from the next day to the day of full payment.

【Plaintiffs amended the purport of the claim as above in the trial of the party】

2. Purport of appeal

A. The plaintiff

The judgment of the first instance court shall be modified in the same manner as the above purport of the claim.

B. The Defendants

The part of the judgment of the court of first instance against the Defendants shall be revoked, and all of the plaintiff's claims corresponding to the revocation shall be dismissed.

The court's explanation on this part is the same as the reasoning of the judgment of the court of first instance, which is the same as that of the judgment of the court of first instance.

2. Judgment as to the main claim

A. The plaintiff's assertion

Although Defendant B was fully aware that the transfer of this case’s subsidy claim is legally null and void, and that there is a significant possibility of concluding that the legal dispute regarding the transfer of subsidy claim would also be null and void, Defendant B deceiving the Plaintiff as if the transfer of this case’s subsidy claim was possible and there was no legal problem, or made a false statement on the facts that were the basis of the judgment that the Plaintiff had lent money to Nonparty B, thereby deceiving the Plaintiff by concealing the truth or by deceiving the Plaintiff.

Even if Defendant B’s deception is not recognized, Defendant B, while in office as a public official for about 35 years, was in a position to know well about the restrictions on the use of the subsidy by taking charge of the agricultural support-related business of Defendant Jincheon-gun for about 3 years, determined that the transfer of the subsidy claim in this case is possible without any examination as to whether the transfer of the subsidy claim in this case is possible, and that Defendant B, as a person in charge of the subsidy project, promised to pay the subsidy in this case directly to the Plaintiff, the transferee of the subsidy claim, constitutes a tort by gross negligence.

As such, Defendant B committed a tort intentionally or by gross negligence in connection with the performance of official duties. Accordingly, the Plaintiff believed that the transfer of the instant subsidy claim is legitimate and incurred damages equivalent to that amount by lending KRW 672,00,000 to the Nonparty Company. Accordingly, Defendant B is jointly liable for payment of KRW 672,00,000 to the Plaintiff under Article 750 of the Civil Act.

B. Whether liability for damages was established

1) Relevant legal principles

When a public official has intentionally or negligently inflicted damage on another person in violation of Acts and subordinate statutes while performing his/her duties, the State or local governments shall compensate for such damage (the main sentence of Article 2 (1) of the State Commercial Act).

When interpreting the main sentence and proviso of Article 29(1) of the Constitution and Article 2 of the State Compensation Act in harmony with the legislative intent thereof, in cases where a public official causes damage to another person by a tort in the course of performing his/her duties, the State or a local government is liable for damages due to a tort in addition to the State's liability for damages, if a public official's personal act is intentional or gross negligence, and in cases where a public official has a progress, the public official is not liable for damages due to a tort, and the public official's gross negligence is not liable for damages due to a tort. The public official's gross negligence in this context means a situation where the public official could have easily predicted the result of illegal or harmful acts, but it merely lacks considerable attention to the same intention (see, e.g., Supreme Court Decision 2003Da1307, Jan. 26,

"In the course of performing the duties" under Article 2 (1) of the State Compensation Act includes the act of performing the duties of a public official or the act closely related thereto, and in determining this, if the act is shown to be an act of a public official by objectively observing the appearance of the act itself, it shall be deemed that the act was performed by the public official even though it was not actually a performance of duties or the actor did not have an intention to perform the duties subjectively (see Supreme Court Decision 2004Da26805, Jan. 14, 2005).

(ii) the facts of recognition

The following facts can be acknowledged in full view of each of the above evidence, witness F, H’s testimony, Defendant B’s personal examination results, and the purport of all the arguments.

A) Defendant B began to serve as a public official from October 197, and worked as the head of the agriculture support and C team of Defendant Jincheon-gun since 2009, and was in charge of the affairs related to the subsidy support project including the instant project.

B) On June 201, E, the representative director of the non-party company, had worked in the loan company office operated by the Plaintiff, and the non-party company was paid 672,00,000 won subsidies from the Defendant Jincheon-gun for the purchase of damp-type pulvers in relation to the instant business. The non-party company first requested to pay the above loan with the Defendant Jincheon-gun as the instant subsidy before receiving the said subsidy.

C) Around June 201, H called Defendant Jincheon-gun’s Agricultural Support Division and Office. Around June 201, he asked the F, who received the said phone, about whether Defendant Jincheon-gun is running a subsidy business in relation to the company of the non-party, whether the instant subsidy claim can be transferred, etc., and F responded to the purport that the Defendant Jincheon-gun was planning to pay the subsidy to the non-party company, but the Defendant Jincheon-gun was not entitled to transfer the subsidy claim.

D) Around June 25, 2011, Defendant B received a report from F on whether he/she could transfer or take over the instant subsidy claim with respect to the Nonparty Company’s subsidy business.

E) Defendant B requested the lender to confirm that the decision on the grant of the instant subsidy by Defendant Jincheon-gun was certain prior to the payment of the instant subsidy from Nonparty Company to Nonparty Company, and requested the lender to confirm that the decision on the grant of the instant subsidy by Defendant Jincheon-gun was clearly made. On June 26, 2011, Defendant Jincheon-gun was going to Seoul along with E and his wife I during the working hours, and Defendant Jincheon-gun was the leader of the Agricultural Support Division, the department in charge of the subsidy project, and Defendant Jincheon-gun was the head of the C Team in relation to the instant project in which the Nonparty Company is proceeding.

The term "" refers to the following.

F) On June 28, 2011, H visited the agricultural support and office office of the Jincheon-gun Office, and met Defendant B. (g) on June 29, 2011, Defendant B visited the office of the non-party company and visited the office of the non-party company to the non-party company, and met H and J at that place. In that place, J demanded Defendant B to affix the official seal of the J to the defendant B on the credit transfer contract, the confirmation letter of assignment of claims, and the performance letter, etc., but Defendant B did not have the official seal of the Jincheon-gun Gun, but affixed his personal seal on the side of each of the above documents stating “Ycheon-gun-gun (the agriculture support team and the C team leader)” at the bottom of the above documents.

H) The terms and conditions of the grant of the subsidy attached to the above decision of the Do governor are specified as the terms and conditions of the grant of the subsidy, such as prohibition of use of the subsidy for purposes other than its original purpose, the matters to be observed by the subsidized operator and the strict management of the competent authorities in the implementation and settlement of the subsidy

3) Specific determination

A) Whether there is intention or gross negligence in the performance of duties

(1) Whether intentional tort liability is established

The above recognition alone is insufficient to recognize that Defendant B had been aware that the transfer of the instant subsidy claim is legally null and void, but it is possible to transfer the subsidy claim and there is no legal problem, and there is no other evidence to acknowledge that there is a deception or concealment of truth. Accordingly, the Plaintiff’s assertion on this part is without merit.

(2) Whether tort liability due to gross negligence is established

(A) In full view of the overall arguments on the above facts of gross negligence, Defendant B, while serving as a public official for about 35 years, was in a position to know about the application and grant procedures of subsidies, restrictions on the implementation of subsidized projects and the use of subsidies, sanctions against the competent authorities in the event of violation, etc., and in particular, it was easy to know the above matters. Nevertheless, Defendant B, as a person in charge of the instant project, determined that the transfer of the above subsidy claim can be possible without any examination as to whether the transfer of the subsidy claim is possible, and as a person in charge of the instant project, Defendant B actively participated in the transfer of the subsidy claim of this case, such as accepting the transfer of the above subsidy claim of this case to the Plaintiff who is the transferee of the instant subsidy claim of this case, and promising Defendant Jincheon-gun to directly pay the instant subsidy of this case for three years; Defendant B’s consent to the transfer of the subsidy claim of this case to Nonparty 2 and to the Plaintiff by gross negligence in view of the nature of this case’s response and the transfer of the claim of this case.

(b) Job relationship;

In full view of the overall purport of the pleadings, the following facts are examined: (a) Defendant B’s seal was affixed to the “third-party obligor Jincheon-gun (competently supported by agriculture)” on the bottom of the agreement on the transfer of claims and the agreement on the transfer of confirmed claims; (b) the public official in charge of the project appears to have changed the subject of the instant subsidy claims in relation to his duties; and (c) even if it is difficult to view it as Defendant Jincheon-gun as an act of Defendant Jincheon-gun without the official seal of Defendant Jincheon-gun or Jincheon-gun’s private economic entity, it would not change not the act performed in his individual qualification but the act performed in his agricultural support and C status; and (c) if Defendant B was not a public official in charge of the project, it appears that the Plaintiff failed to obtain the above Defendant’s consent on the instant subsidy claim transfer contract and the written consent on the transfer of claims from Defendant B as an individual. In light of the above, it is reasonable to view that Defendant B’s act was closely related to the act of the approval of Defendant B’s agricultural project.

Defendant Jincheon-gun asserted that Defendant Jincheon-gun did not bear liability under the State Compensation Act because the Plaintiff was sufficiently aware of, or was grossly negligent in, the fact that the above act of Defendant Jincheon-gun was not an act of performing his duties as a public official belonging to Defendant Jincheon-gun. However, even if an employee’s unlawful act falls within the scope of performing duties externally, the victim cannot be held liable if he knew of, or was grossly negligent in, the fact that the employee’s unlawful act does not constitute an act of performing duties in lieu of the employer or the employer. In this case, the Plaintiff’s consent to transfer or takeover of a subsidy and the Plaintiff’s unlawful act was not sufficiently recognized in light of the fact that if the other party to the transaction knew that the employee’s act was not lawfully performed within his authority and authority, the Plaintiff’s act was not in violation of the duty of due care required by the general public, and that it was not necessary to protect the other party from an equitable perspective (see Supreme Court Decision 2006Da4171, Jan. 18, 2008).

(C) The causal relationship with the loss

In full view of the aforementioned circumstances and the overall purport of the arguments, the following facts are examined: (a) the Plaintiff thought that the collateral for the instant subsidy to the Defendant Jincheon-gun of the non-party company was reliable; and (b) lent money equivalent to the instant subsidy to the non-party company without any other collateral establishment; (c) Defendant B confirmed that the instant subsidy claim will be paid to the non-party company several times; and (d) the Plaintiff appears to have been reliance on the end of the non-party because it was possible to transfer the said subsidy claim, and (e) the Plaintiff did not consent to the transfer of the instant subsidy claim under the name of Jincheon-gun, inasmuch as the Plaintiff did not directly make the Plaintiff to pay the instant subsidy claim to the non-party company without any consent to the transfer of the instant subsidy claim, the Plaintiff appears to have not made a loan to the non-party company, and thus, there is a proximate causal causal relation between the gross negligence of the Defendant and the Plaintiff’s loan to the non-party company.

(D) Accordingly, Defendant B is liable to compensate the Plaintiff for the damages incurred by the Plaintiff as the transfer of the instant subsidy claim becomes null and void due to gross negligence in the course of performing his duties, and Defendant Jincheon-gun is jointly and severally liable with Defendant B pursuant to Article 2 of the State Compensation Act.

C. Scope of liability for damages

1) Plaintiff’s damages

The Plaintiff believed that the transfer of the instant subsidy claim is valid and lent money to the Nonparty Company. As seen earlier, the damages suffered by the Plaintiff due to Defendant B’s tort is equivalent to the loans actually paid by the Plaintiff to the Nonparty Company.

With respect to the amount of loans actually paid by the Plaintiff to the non-party company, the Plaintiff asserted that the non-party company paid 670,000,000 won to the non-party company as stated in the loan certificate. However, in full view of the purport of the entire pleadings in Eul evidence No. 4, the Plaintiff deposited 54,00,000 won from K on June 29, 201 to the non-party company as the Plaintiff’s account, and then withdrawn 37,00,000 won additionally from the Plaintiff’s account on the 30th of the same month; it can be recognized that the non-party company’s representative director deposited 54,00,000 won out of the loan money paid by the Plaintiff to the non-party company’s account in the non-party company’s name. Thus, it is reasonable to view that the amount of loans actually paid by the Plaintiff to the non-party company is 581,000,000 won (=54,000,0000 won).

The defendant asserts that the above dividends should be deducted from the above amount of damages since the plaintiff received dividends of KRW 90,01,857 in the auction procedure for the factory building owned by the non-party company. Thus, in full view of the purport of the whole pleadings in the statement No. 21 of the evidence No. 21, the plaintiff's demand for distribution of KRW 670,000,000 as principal in the Cheongju District Court L Auction Case and received KRW 90,011,857 as dividends on August 20, 2014. According to the above facts, the above amount of damages suffered by the plaintiff due to the defendant's tort should be deducted from the amount of damages suffered by the plaintiff. Thus, since the above amount of damages suffered by the plaintiff should be deducted from the amount of damages suffered by the plaintiff (=581,00,000,000 - KRW 91,857 won).

2) Limitation on liability

In a case where liability for damages is acknowledged, if the creditor is negligent or it is necessary to ensure fair loss burden, the liability of the debtor may be limited. In this case, the plaintiff thought that the non-party company was not the involvement of the defendant Jincheon-gun in borrowing money from the lending company, but the plaintiff extended money to the non-party company without any other confirmation procedure with the trust of the end of the defendant B with regard to the transfer of the claim of this case which can be the only security for the above loan, and the contract for the transfer of the claim of this case and the written consent for the transfer of the claim of this case, the letter of performance, etc. are that the defendant Jincheon-gun consented to the transfer of the claim of this case, but the plaintiff did not obtain the official seal of Jincheon-gun-gun, the representative of the defendant Jincheon-gun-gun and the personal seal of the defendant B, the head of the C team, and thus, the plaintiff contributed to the creation and expansion of the damage of this case. Thus, the extent of the defendant's liability for damages due to the illegal act of the defendants should be limited to 50%.

3) Sub-decisions

Therefore, Defendant B, as an illegal act, is 343,691,70 won in compensation for damages (=490,98,143 won x 0.7) and damages for delay calculated at the rate of 5% per annum under the Civil Act from June 30, 2011 to August 18, 2015, which is the date when the court rendered a substantial decision that the said Defendant paid the loan to the non-party company, and at the rate of 20% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the following day to the date of full payment, and the damages for delay calculated at the rate of 245,494,071 won among the above amounts jointly and severally with Defendant B (=490,98,143 won x 0.5) and the damages for delay calculated at the rate of 0% per annum from June 30, 2011 to August 15, 2015.

3. Judgment on the conjunctive claim

A. Legal nature and necessity for determination of the conjunctive claim

The plaintiff's claim for damages due to the illegal act committed by the primary claimant against the defendant B and the claim for the agreed amount based on the preliminary claimant's claim for performance are compatible with each other.

Although the plaintiff had a selective relationship, the order and scope of the adjudication were limited by filing a lawsuit in the form of the primary and preliminary consolidation. Accordingly, the plaintiff's primary and conjunctive claims against the defendant B are called the so-called non-exclusive claims, and where the plaintiff's primary claims are not fully accepted, the parties can file a lawsuit by combining each claim with the purport that they would make a judgment on the conjunctive claims within the scope of the amount not accepted from the primary claims, and as long as the plaintiff's primary claims against the defendant B are not fully accepted, the plaintiff's primary claims against the defendant B shall also be judged.

B. In full view of the purport of the argument in the evidence No. 22 as to the determination of the conjunctive claim, the Plaintiff requested Defendant B to repay the above loan since the Plaintiff did not receive the instant subsidy from Defendant Jincheon-gun and was unable to receive the loan from the Nonparty Company. Accordingly, Defendant B was obligated to pay the Plaintiff the above amount of KRW 670,00,000 until January 20, 2012, respectively. However, it can be acknowledged that: (a) written statement of performance stating that the above amount of KRW 20,100,000 was deposited by the head of the Tong by January 10, 2012; and (b) according to the above facts of recognition, Defendant B is obligated to pay the Plaintiff the agreed amount of KRW 690,100,000 among the agreed amount of KRW 670,000,000 and the delay damages amount of KRW 670,000,000.

As to this, Defendant B’s explanation or execution of subsidies was conducted in a way that the above execution statement is related to the settlement or execution of subsidies, and even if not, it is conditioned that Defendant Jincheon-gun shall not be liable for any violation of the terms and conditions of the Plaintiff. However, as seen above, the Plaintiff did not acquire the instant subsidy claim or receive it from Defendant Jincheon-gun, and there is no evidence to prove that Defendant B prepared the above performance statement on the condition that the Plaintiff did not seek any liability against the Defendant Jincheon-gun, as seen above, it is without merit. Defendant B received a large amount of KRW 90,01,857 from the auction procedure for the factory building owned by the non-party company, and thus, Defendant B should deduct the above amount of dividends from the above contract amount of KRW 70,000,000, KRW 7080, KRW 970, KRW 7080, KRW 800, KRW 700, KRW 9780.

Therefore, upon the instant conjunctive claim, Defendant B’s agreed amount to be paid to the Plaintiff is KRW 256,396,443 (i.e., KRW 600,08,143 - KRW 343,691,70) and damages for delay calculated at the rate of 20% per annum under the Civil Act from January 21, 2012, which is the day following the date when the contract is due, to dispute as to the existence or scope of the obligation of the Defendant, until August 18, 2015, which is the date when the contract is due, and from the following day to the date when the repayment is made, 236,296,443.

4. Conclusion

Therefore, Defendant B is obligated to pay the Plaintiff 600,088,143 won (the accepted amount of the primary claim 343,691,700 won + the accepted amount of the conjunctive claim 256,396,443 won) and 343,691,70 won per annum from June 30, 2011 to August 18, 2015; 5% per annum from January 21, 2012 to August 18, 2015; 236,296,43 won per annum; and 20% per annum from the next day to August 18, 2015 to the date of full payment; Defendant Jincheon-gun is jointly and severally liable to pay damages for delay calculated with Defendant B by 245,494,71 won; and 5% per annum from June 15, 2015 to the date of full payment.

If so, the plaintiff's main claim against the defendants and the conjunctive claim against the defendant B are justified within the above scope of recognition, and all of the remaining main claims against the defendants and the remaining conjunctive claims against the defendant B are dismissed as it is without merit. Since the judgment of the court of first instance is unfair differently from this conclusion, the judgment of the court of first instance shall be modified as the judgment of the court of first instance, including the changed claim at the court of first instance.

Judges, white leaves

Judges fixed-scale