[1] In a case where a trade employee, who has a partial comprehensive power of attorney, commits an act that does not fall under a specific business or a specific matter, the elements to hold the proprietor liable for the business

[2] In a case where a victim's intentional act of an employee is recognized as a malicious or gross negligence, whether an employer's liability is recognized (negative)

[1] In a case where a trade employee, who has a partial comprehensive power of attorney, commits an act that does not belong to a specific business or a specific matter, there is a justifiable reason to believe that the other party who has transacted with the trade employee, in accordance with the legal doctrine of expression representation under the Civil Act, has such authority.

[2] Even in cases where an employee's illegal act appears to fall within the scope of employer's execution of business, where the victim himself/herself knew, or was unaware due to gross negligence, that the employee's illegal act does not fall within the scope of employer's execution of business, the employer's liability may not be imposed on the employee, instead of the employer or the supervisor of business.

[1] Article 15 of the Commercial Act, Article 126 of the Civil Act / [2] Article 756 of the Civil Act

[1] Supreme Court Decision 65Da2295 delivered on January 31, 1966, Supreme Court Decision 88Da23742 delivered on August 8, 1989 (Gong1989, 1348) / [2] Supreme Court Decision 94Da29850 delivered on April 26, 1996 (Gong196Sang, 162), Supreme Court Decision 95Da17595 delivered on December 10, 1996 (Gong197Sang, 293), Supreme Court Decision 97Da19687 delivered on March 27, 198 (Gong198Sang, 1169), Supreme Court Decision 97Da7217389 delivered on March 9, 199 (Gong169)

Plaintiff 1 and one other (Law Firm Barun Law Office, Attorneys Kang Jon et al., Counsel for the plaintiff-appellant)

Soto Electronic Communications Co., Ltd. (Attorneys Kim Won-sung et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 98Na28093 delivered on January 20, 1999

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

We examine the grounds of appeal.

1. Regarding ground of appeal No. 1

A trade employee, with a partial comprehensive power of attorney, may engage in all acts other than trials on a specific type of business or a specific matter granted by him/her, and the proprietor may not oppose a bona fide third party due to the restriction on the power of attorney of the employee with the said partial comprehensive power of attorney. This is the same as a theory of lawsuit.

According to the reasoning of the judgment of the court of first instance cited by the court below, the court below acknowledged the following facts: the plaintiffs are merchants selling mobile phones, radio callers, etc. with the trade name of "Yeongdong," and the defendant company mainly for the purpose of wholesale and retail business of communications equipment; the non-party 1 supplied the mobile phones produced by Motool Korea Co., Ltd. to each agency; the non-party 1 is a trade employee who is the operating director of the defendant company; the plaintiffs and the above non-party 1 agreed on Nov. 1, 1995 to supply a large quantity of mobile phones at a price lower than general wholesale price (hereinafter "the contract of this case"), and barring special circumstances, the contract of this case extends to the defendant company. Accordingly, the contract of this case was concluded without authority of the above non-party 1; the defendant's defense that the defendant's company does not reach the defendant company; the court below's conclusion that the non-party 1's right of representation was not effective as against the defendant's company.

2. Regarding ground of appeal No. 2

According to the reasoning of the judgment of the court of first instance as cited by the court below, the above non-party 1's motive for the above non-party 1 to enter into the contract of this case into with the non-party 1's mobile phone's mobile phone owner's 0-party 1'the above 0-party 0-party 1'the above 0-party 1's mobile phone price and 0-party 1'the above 0-party 1' mobile phone price for the above 0-party 1'the above 0-party 5' mobile phone price for the above 0-party 1'the above 0-party 1' mobile phone price for the above 0-party 1'the defendant company's mobile phone price for the above 0-party 1'the above 0-party 1'the defendant company's mobile phone price for the above 0-party 1'the defendant company's mobile phone price for the above 90-party 1's mobile phone price for the above 90-party 1'the defendant price.

3. As to the third ground for appeal

In a case where a trade employee, who has a partial comprehensive power of attorney, engages in a specific business or an act that does not belong to a specific matter, the trade employee, in accordance with the legal doctrine of expression agency under the Civil Act, should have justifiable grounds to believe that the other party, who has transacted with the trade employee, has such authority (see, e.g., Supreme Court Decisions 74Da492, Jun. 11, 1974; 65Da2295, Jan. 31, 1966).

As seen earlier, it cannot be deemed that there are circumstances to believe that the above non-party 1 was granted the authority to conclude the instant contract by the Defendant, and therefore, it cannot be said that there was no error of law that affected the conclusion of the judgment by failing to make a judgment on this issue. The argument is without merit.

4. As to the fourth ground for appeal

Even in cases where an employee's tort appears to fall within the scope of employer's execution of business, where the victim himself/herself knew, or was unaware due to gross negligence, that the employee's act does not fall within the scope of employer's execution of business (see, e.g., Supreme Court Decisions 97Da721, 7738, Mar. 9, 199; 94Da29850, Apr. 26, 1996).

According to the reasoning of the judgment below, the court below rejected the plaintiffs' preliminary claim on the ground that there is no evidence to support the fact that the above non-party 1 deceivings the plaintiffs as above and received money from the plaintiffs or embezzled part of the money received as advance payment from the plaintiffs. Rather, in light of the motive and circumstance leading up to entering into the contract of this case between the plaintiffs and the above non-party 1, the above non-party 1 has the right to sell the mobile phone of the defendant company in the arm's length price, and there is no right to engage in the contract of this case and non-data transaction for the purpose of supplying it in bulk at the price below, and the plaintiffs also delivered the money in advance to the above non-party 1 with the knowledge of such fact at the time of the contract of this case. In light of the records, the court below's recognition and decision is just, and there is no error of law of misconception of facts against the rules of evidence, such as theory of lawsuit, without merit.

5. Therefore, all appeals are dismissed, and the 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 Shin Sung-sung (Presiding Justice)