[손해배상(기)][공1996.1.1.(1),21]
[1] The meaning of "date when he becomes aware of the damage and the perpetrator" under Article 766 (1) of the Civil Code
[2] Whether a person who intentionally committed a tort by using the victim's care can assert the offsetting of negligence on the ground of the victim's care immediately
[1] The "date when a person becomes aware of the damage and of the identity of the tortfeasor" under Article 766 (1) of the Civil Code, which is the starting point of the short-term extinctive prescription of the claim for damages due to a tort, refers to the occurrence of the damage and the date when he knows that the damage was caused by the tortfeasor's tort. In such cases, in order to determine the occurrence of the damage, the amount and degree of the damage should be specifically and concretely known, even if it is not necessary to know of the occurrence of the damage, the damage must
[2] It is not permissible for a person who intentionally committed a tort by taking advantage of the victim's care to claim a reduction of his/her responsibility on the ground of the victim's care.
[1] Article 766(1) of the Civil Act / [2] Articles 396, 496, and 763 of the Civil Act
[1] Supreme Court Decision 92Da22831 delivered on July 29, 1994 (Gong1994Ha, 2225), Supreme Court Decision 94Da30263 delivered on February 10, 1995 (Gong1995Sang, 1301) / [2] Supreme Court Decision 75Da11 delivered on May 11, 197 (Gong1976, 9181 delivered on July 21, 1987) (Gong1987, 1388)
Plaintiff (Attorney Lee Jae-sung, Counsel for the plaintiff-appellant)
Defendant (Dongdong Law Firm, Attorneys Seo Jong-woo et al., Counsel for defendant-appellant)
Seoul High Court Decision 94Na20657 delivered on May 31, 1995
The appeal is dismissed. The costs of appeal are assessed against the defendant.
The grounds of appeal No. 1 are examined.
Article 766(1) of the Civil Act, which is the starting date of the short-term extinctive prescription of a claim for damages due to a tort, refers to the date when the damage was discovered and the damage was caused by the tortfeasor's tort. In this case, in order to determine that the occurrence of the damage was known, even if it is not necessary to specifically and concretely know the amount and degree of the damage, the actual and specific loss should be recognized and the presumption or doubt of the simple occurrence of the damage is not sufficient (see, e.g., Supreme Court Decisions 90Da8152, Mar. 22, 1991; 92Da42583, Dec. 8, 1992; 94Da30263, Feb. 10, 1995).
The defendant's embezzlement act of the plaintiff corporation, a founder of the plaintiff corporation, was in charge of the finance and personnel management of the above school as the principal of the plaintiff corporation's director and the female commercial high school affiliated with the plaintiff corporation, and used the difference for personal purposes by falsely manipulating accounting-related documents as if it was actually paid, or as if it was actually paid, and as long as the defendant, who was solely in charge of the plaintiff corporation's business, did not recognize the embezzlement itself, it can be found that the above form of embezzlement is only a considerable investigation unless the defendant himself/herself does not recognize the embezzlement itself. Thus, the above form of embezzlement of the plaintiff corporation's principal, who was solely in charge of the plaintiff corporation's business, was collectively deaf with the student while the teachers of the above school demanded explanation about the foundation's corruption from the semester to October 198, and thus, the Seoul Education Committee dispatched the above audit team to the above school around the end of 198 (which can not be viewed as a misunderstanding of the legal principles as the plaintiff's chief director's 12 years counting.
The grounds of appeal No. 2 are examined.
The issue is that since other directors except the president and the defendant do not participate in the business of the plaintiff corporation at all and do not exercise the supervisory authority over the defendant who is the principal, the defendant's act of embezzlement has been avoided as above, because the defendant did not know that his act was in violation of the law. Thus, the waiver of such business should also be considered as the ground for offsetting negligence.
However, it is not permissible for a person who intentionally committed a tort by taking advantage of the victim's care to claim to reduce his responsibility on the ground of the victim's negligence (see, e.g., Supreme Court Decisions 70Da298, Apr. 28, 1970; 75Da11, May 11, 1976; 87Da637, Jul. 21, 1987; 87Da637, Apr. 21, 1987). According to the records, the defendant shall register a certain number of persons formally as a director in the articles of incorporation in order to meet the requirements for the establishment of a school juristic person, and actually, it is recognized that the defendant was carrying out the business of the plaintiff juristic person independently after obtaining seals from him, and therefore, the defendant cannot assert the reduction of liability on the ground of the plaintiff juristic person's director's failure to perform his duties. Thus, the judgment of the court below rejecting the defendant's argument on the offsetting's negligence is justifiable, and
Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Jeong Jong-ho (Presiding Justice)