[2] In a case where an employer is obligated to pay a fine pursuant to the joint penal provisions, whether the employer may seek a substantial compensation from the employee who committed the illegal act or his/her employee (negative in principle)

[3] The case reversing the judgment of the court below which held that the amount of fine determined as payment by the employer under Article 77 of the Prevention of Marine Pollution Act, which is a joint penal provision, can be compensated for from the actual employer

1. Plaintiff’s ground of appeal

In light of all circumstances, the court below was justified in holding that there was a proximate causal relation between the accident in this case and the actual profit of the plaintiff's assertion that there was no error in the misapprehension of the rules of evidence, etc., as alleged in the grounds of appeal, even though the plaintiff could use the steering gear, etc. on board the ship in this case as a fishing gear, for the purpose of using the fishing gear with the 95 boxes, since there was no domestic accident in this case, the plaintiff could not use the steering gear, etc. on board the ship in this case as the fishing gear for the 95 boxes, and in light of all circumstances, such as the non-party 1, who was asked by the plaintiff for repair services of the 95 boxes, could not be seen as causing the damage due to typhoon between the non-party 1's leaving repair services of the 95 boxes, etc. on board the ship in this case.

2. As to the Defendant’s ground of appeal

A. As to the first ground for appeal

In calculating the amount of damages, in order to allow offsetting profits and losses, the victim has obtained new profits due to the act that causes damages, and such profits shall correspond to the scope of damages to be compensated by the obligor. Even if the plaintiff received mutual aid money under the mutual aid agreement on the ship of this case and exempted the payment of the expenses for the closed ship, the above mutual aid money is merely to compensate for damages to the hull and the sinking of the vessel of this case, and it cannot be said that the expenses for the closed ship exempted from the payment are to be incurred to the hull of this case. Accordingly, the court below's rejection of the defendant's letter of mutual aid against all organizations of this case which were sunken due to the accident of this case cannot be directly compensated by the plaintiff's losses. There is no error in the misapprehension of legal principles as to offsetting profits and losses, contrary to the allegations in the grounds of appeal.

B. Regarding ground of appeal No. 2

The employer’s punishment under the joint penal provisions is, independently from the punishment of an employee who is a prohibited violation, punishable by negligence in the appointment and supervision of that employee (see Supreme Court Decision 2005Do7673, Feb. 24, 2006). If an employee is an act relating to his/her business in appearance objectively and commits an illegal act in the course of performing his/her duties, the motive of the illegal act is merely for the employee’s or a third party’s interest, and even if it is not for the employer’s business, it cannot be exempted from the liability for negligence in the course of supervision (see Supreme Court Decision 2001Do5595, Jan. 25, 2002). The payment of fines therefrom constitutes damages caused by his/her own negligence, and barring any special agreement, the employee who committed the illegal act or his/her actual employer cannot seek compensation therefor.

Nevertheless, the court below erred in the misapprehension of legal principles as to the nature of joint penal provisions and the proximate causal relation in the claim for damages, which affected the conclusion of the judgment, since the amount equivalent to KRW 3,00,000, which was decided to be paid by the plaintiff under Article 77 of the Prevention of Marine Pollution Act, was caused by the defendant's tort committed by the non-party 2, the employer of the non-party 2, and was included in the amount of damages to be compensated by the defendant, considering the proximate causal relation between the accident

3. Conclusion

Therefore, by accepting the Defendant’s appeal, the part against the Defendant among the judgment below is reversed, and that part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices

Justices Park Ill-sook (Presiding Justice)