[2] In a case where Eul, the director of the business team of Eul corporation Eul et al., conspired with Eul corporation's actual operator Byung, and entered into a contract to sell the bridge saf produced by Byung corporation's company Byung in collusion with Eul corporation's actual operator, and thereby invested funds within three months, it received money from Byung who believed it as a fact by making repayment of principal within three months and giving profits equivalent to the principal after making payments, the case holding that the court below erred in the misapprehension of legal principles in holding that even if Eul's error constitutes a joint tort, liability for Eul may be limited on the ground of non-performance of legal principle

1. As to the Defendant’s first ground of appeal

Examining the reasoning of the judgment below in light of the records, the court below acknowledged the facts and circumstances as stated in its adopted evidence, and found that the defendant, the chief of the business team of marina company, in collusion with the non-party, who is the actual operator of New beer's business team, committed a tort of receiving additional KRW 10 million from the plaintiff who believed that he would pay the principal to the plaintiff within three months and offer profits equivalent to the principal after making an investment because he/she made a contract with the plaintiff to sell the bridge board produced in the New beer's channel in collusion with the non-party, the actual operator of New beer's new beer's company, and thus, he/she did not err in the misapprehension of legal principles as to the mistake of facts and joint tort liability due to the violation of the rules of evidence, contrary to the allegations in the grounds of appeal.

2. The plaintiff's ground of appeal No. 1

It is not permissible for a person who intentionally committed a tort by taking advantage of the care of the victim to claim a reduction of his/her liability on the ground of the care of the victim. Meanwhile, the claim for joint tort liability does not seek damages from each individual act of the perpetrator individually, but imposes liability on the tortfeasor for the joint tort jointly committed by the perpetrator. As such, the scope of liability for joint tort liability shall be determined by comprehensively assessing and assessing all the acts of the tortfeasor in relation to the victim. The amount of liability for damages shall be borne by each tortfeasor, and even if the degree of liability of the tortfeasor is minor compared to other tortfeasor, the scope of liability of the tortfeasor shall not be limited to part of the amount of compensation as set as above in relation to the victim (see Supreme Court Decision 2006Da16550, Dec. 27, 2007, etc.).

According to the reasoning of the judgment below, even if the defendant's error constituted a joint tort with the non-party, the court below determined that the defendant, unlike the non-party, may limit his liability on the ground of the plaintiff's negligence, and that the ratio of liability should be limited to 70% of the amount of damage, on the ground that the principle of good faith and the equitable apportionment of damage

However, in light of the above legal principles and records, it is not permitted in accordance with the principle of good faith to assert that the defendant who conspireds with the non-party by taking advantage of the plaintiff's care and acquired the money by deceptioning his liability for the reason of his negligence, and even if the defendant processed the illegal act compared to the non-party who is another joint tortfeasor, barring any special circumstance, the scope of the defendant's liability cannot be limited as part of the amount of damages in relation to the plaintiff who is the victim. Nevertheless, the court below erred in the misapprehension of legal principles as to comparative negligence, thereby affecting the conclusion of judgment. The plaintiff's ground of appeal pointing this out

3. As to the defendant's second ground for appeal

As long as the defendant's claim on the limitation of liability is not allowed, this part of the defendant's ground of appeal, which is premised on such permission, cannot be accepted.

4. Conclusion

Therefore, without examining the remaining grounds of appeal by the Plaintiff, the part against the Plaintiff among the judgment below is reversed, and that part of the case is remanded to the court below for a new trial and determination. The Defendant’s appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-deok-soo (Presiding Justice)