[2] The meaning of "in relation to the execution of affairs, which is the requirement for the employer's liability under Article 756 of the Civil Code, and the standard for its determination

[2] The phrase "in relation to the performance of an employee's business", which is an element for an employer's liability under Article 756 of the Civil Code, means that if an employee's unlawful act objectively appears to be related to the employee's business activity, work execution, or performance of business, it shall be deemed that the employee's act was performed without considering the offender's subjective circumstances. Whether it is objectively related to the employee's performance of business should be determined by considering the degree of the employee's inherent duty and tort, and the degree of the employee's responsibility for causing risks and preventing damages

1. As to the ground of appeal on the primary claim

A. According to the reasoning of the judgment below, the court below decided to sell 23,369 square meters of forest land (hereinafter referred to as "forest land") and 2,912 square meters of forest land located in Suwon-si on April 22, 1996 to the non-party 10, the non-party 2, who purchased the above clan 0 to the non-party 1, the non-party 2 and the non-party 3, who was the representative of the defendant clan, and the non-party 1, the non-party 2, the non-party 3, the non-party 4, the non-party 1, the non-party 1, the non-party 2, and the non-party 3, the non-party 9, the non-party 2, the non-party 1, the non-party 2, the non-party 1, the non-party 2, the non-party 1, the non-party 2, the non-party 2, the defendant's right to purchase the above forest land for sale and the non-party 1, the non-party 2.

B. In light of the records, the above fact-finding by the court below is justified and there is no error of misconception of facts in violation of the rules of evidence. And as determined by the court below, the non-party 3 borrowed money from the plaintiff on behalf of the defendant clan on the ground that it actually purchased the forest land of this case on behalf of the defendant clan, and the plaintiff knew that it was so, it cannot be viewed that the non-party 3's conclusion of the security transfer contract of this case cannot be seen as an act of acting for the defendant clan, and it cannot be applied to the defendant clan, and the legal principles of expression agent under Article 126 of the Civil Act cannot be applied (see, e.g., Supreme Court Decisions 71Da2365, May 23, 1972; 72Da1530, Nov. 13, 192; 92Da3329, Nov. 13, 192; and there is no error in the judgment of the court below in the misapprehension of legal principles as to the expression agent or agent of this case.

2. As to the ground of appeal on the conjunctive claim

A. As to the omission of judgment

According to the records, although the plaintiff asserted that the representative of the defendant clan is liable for damages incurred to the plaintiff due to the violation of his duties in accordance with Article 35 of the Civil Code, although the non-party 3, the representative of the defendant clan, was responsible for compensating the plaintiff for damages (record 501 pages), it can be recognized

However, according to the reasoning of the judgment below, the court below recognized that the non-party 3 was entrusted with the authority of the defendant clan to sell the forest land owned by the defendant clan, including the forest land in this case, and that the non-party 3 was not the representative of the defendant clan, but the defendant clan, regardless of the defendant clan, borrowed money from the plaintiff and entered into the security contract of this case individually regardless of the defendant clan, and decided whether the defendant clan bears the employer's responsibility pursuant to Article 756 of the Civil Act. Further, the judgment of the court below is based on the premise that the non-party 3 is not the representative of the defendant clan, and it is not included in the judgment of the court below that the non-party 3 rejected the plaintiff's assertion that the non-party 3 was the representative of the defendant clan, and therefore, it cannot be said that the court below committed an unlawful violation of the law

B. As to the misapprehension of legal principles as to job relationship

As above, so long as the non-party 3 cannot be seen as the representative of the defendant clan, the plaintiff's assertion that the non-party 3 bears tort liability under Article 35 of the Civil Act on the premise that the non-party 3 is the representative of the defendant clan is not acceptable: Provided, That the non-party 3 is an employee entrusted with the authority to sell forest land owned by the defendant clan as a general member of the defendant clan, and the non-party 3 is an employee with regard to the execution of affairs, which is the requirement for the employer's liability under Article 756 of the Civil Act, "in relation to the execution of affairs," which is the requirement for the employer's responsibility under Article 756 of the Civil Act, shall be deemed as an act concerning the execution of affairs without considering the actor's subjective circumstances. Whether it is objectively related to the execution of affairs of the non-party 3 shall be determined in consideration of the degree related to the original duties and tort and the degree of the employer's responsibility for preventing damage and preventing damage (see, e.g., Supreme Court Decision 297Da9797. 297.

According to the reasoning of the judgment below, on the basis of the above facts, the court below reasoned that the plaintiff is authorized to dispose of the forest land of this case and therefore it is necessary to prevent the bill from using a 400,000,000 won to the non-party 3 "the non-party 3", and it does not lend the above money to the non-party 3 who representing the defendant clan or the defendant clan, and the purpose of the fund is not for the defendant clan. Thus, it cannot be viewed that the non-party 3's act of borrowing the above money belongs objectively to the duties of the defendant clan or is closely related to the duties of the defendant clan's general duties, and even if the defendant clan neglected to keep the defendant clan 1 and 2 in custody, it cannot be viewed that the above resolution of the court below was unrelated to the non-party 3's tort of this case and the plaintiff's losses to the non-party 3's officer's duty, and it cannot be viewed that it was not related to the non-party 3's act of borrowing's personal duty and duty of preventing the plaintiff.

3. Therefore, the appeal is dismissed and all costs of appeal are assessed against the plaintiff who is the appellant. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Yong-woo (Presiding Justice)