[1] 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 case holding that if the former head of a branch office of a securities company had worked as an investment adviser at the same branch office after retirement of the company and had left his position as an investment adviser, but has concealed it and continued to work as an investment adviser against customers, and if a securities company has impliedly done his business and had the appearance as if the company had done his business as an investment adviser, the securities company cannot be held liable for the act of withdrawing money using the securities card and seal impression of its customers

[1] 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, shall be deemed to be an act of performing an employee's business without considering subjective circumstances, when it appears that the employee's tort objectively appears to be an employee's business activity, an act of performing an employee's business, or an act of performing an employee's business. Here, whether it is objectively related to the performance of an employee's business should be determined by considering the degree related to the employee's original duty and tort,

[2] The case holding that if the former head of a branch office of a securities company had worked as an investment adviser at the same branch office after retirement of the company and had left his position as an investment adviser, it could not be held liable for the act of withdrawing money using the securities card and seal impression of the customer, and then the securities company could not be held liable for the employer

[1] Article 756 of the Civil Code / [2] Article 756 of the Civil Code

[1] [2] Supreme Court Decision 91Da39146 delivered on February 25, 1992 (Gong1992, 1143), Supreme Court Decision 94Da38168 delivered on October 13, 1995 (Gong1995Ha, 3761), Supreme Court Decision 98Da29735 delivered on March 10, 200 (Gong200Sang, 923)

Plaintiff 1 and one other

Defendant Co., Ltd. (Law Firm Head, Attorneys Park Jong-sung, Counsel for the defendant-appellant)

Seoul High Court Decision 99Na5957 delivered on October 31, 2000

All appeals are dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. On the first ground for appeal

According to the reasoning of the judgment below, the court below, based on the evidence adopted in its judgment, found that the plaintiffs opened a securities trading account at the defendant company's old branch's recommendation, delivered securities cards and seal impressions, etc. to the non-party 1, and transferred all rights to the stock transaction through the account to the non-party 1. The non-party 1, as a result, released 16,50,000 won of the 1,50 shares issued from the plaintiff 2's account on June 17, 1997 and delivered 16,650,000 won of the 13,00 shares issued at the 14th day of September of the same year and November 14 of the same year to the non-party 1's account, and it did not err in the misapprehension of the rules of evidence as to the 10th day of the above 10th day after the withdrawal of 10,500 shares and the 10th day of 100,420,300 won from the account.

2. On the second ground for appeal

The phrase "in relation to the performance of duties", which is an element for an employer's liability under Article 756 of the Civil Act, means that when an employee's unlawful act appears objectively to be objectively related to the employee's business activities, performance of duties, or performance of duties, such act shall be deemed to have been performed without considering any subjective circumstances. Here, whether it is objectively related to the performance of duties of the employee objectively should be determined by considering the degree related to the employee's own duties and tort, the degree of the employee's occurrence of damages, and the degree of the employer's responsibility for creating risks and failing to take preventive measures (see, e.g., Supreme Court Decisions 91Da39146, Feb. 25, 1992; 94Da38168, Oct. 13, 19

According to the reasoning of the judgment below, the court below held on January 20, 1997 that the non-party 1 was working before the retirement of the defendant company until August 1997 and entered into an investment adviser's employment contract with the defendant company on the following day, and retired from the office of investment adviser's office on June 30 of the same year, but thereafter, the non-party 1 still worked at the investment adviser's old branch's office on June 30 of the same year, and until August 1997, the non-party 2 would be entitled to pay a certain amount monthly amount of money as the fee for the name of the investment counselor's name, and that the non-party 2 would have worked at the investment adviser's office within the old branch's office of investment adviser's office of investment, and that the non-party 1 could not be held liable for damages as the defendant company's employee's investment adviser's employee, and that the non-party 1 still used the defendant company's business as the defendant 1's employee.

In light of the above legal principles and records, the above judgment of the court below is justified, and there is no error of law by misunderstanding legal principles as to employer liability as otherwise pointed out in the ground of appeal. Even if an employee's tort falls within the scope of appearance, if the victim himself knew that the employee's act does not constitute an act of supervising the business in lieu of the employer or employer, or was not aware of it due to gross negligence, the employer's liability cannot be imposed on the employee in lieu of the employer or employer (see, e.g., Supreme Court Decisions 92Da10531, Jul. 28, 1992; 95Da17595, Dec. 10, 196). Meanwhile, it is hard to view that the plaintiff's negligence was not known that the defendant 1's act was conducted as a defense counsel of the non-party 1, who was charged with the violation of the Securities and Exchange Act, and it is difficult to view that the plaintiff's above act was not known to the above defendant 1, nor can it be viewed that the plaintiff 2 had been exempted from the above investment.

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

Justices Lee Yong-woo (Presiding Justice)