[1] Criteria for distinguishing a disposal document from a reporting document

[2] Criteria for determining whether a party to the appraisal opinion submitted by documentary evidence is employed

[3] The case reversing the judgment below which calculated the amount of damages due to the loss of goods by adopting the above adjustment statement without reasonable grounds and contrary to the empirical rule in case where the plaintiff submitted a damage evaluation statement prepared by personally entrusting the damage evaluation company without going through the court's appraisal procedure

[1] In order for a certain document to be considered as a disposal document, an act under the public law or private law must be proved by the document. Even if the content of the document pertains to the person who prepared the document, if the legal act is deemed to be an external fact, or is described in the opinion or appreciation thereof, it is not a disposal document, but a disposal document.

[2] Even in cases where the appraisal opinion is not necessarily withdrawn from the lawsuit by the method of appraisal under the Civil Procedure Act, and a document stating the appraisal opinion prepared by a person with professional knowledge and experience outside the lawsuit is submitted by means of documentary evidence, the fact-finding court recognizes it as reasonable and reliable. However, in principle, the appraisal should be entrusted to an authoritative institution, such as a public institution, school, other organization with considerable facilities, or foreign public institution, if it is deemed necessary after designating a person with knowledge and experience as an appraiser and requiring him/her to take an oath, or if it is deemed necessary to do so, it should not be easily adopted if there is a circumstance to suspect that the appraisal opinion submitted by the parties by documentary evidence is not made by the court's appraisal or commission, or if the opinion is not sufficient to eliminate a reasonable doubt of the court, it should not be easily adopted, especially if the appraisal opinion is being conducted by one of the parties, and it is possible to arbitrarily request the court to conduct the appraisal without following the procedure.

[3] In a case where the plaintiff submitted a damage evaluation statement prepared by requesting a damage evaluation company individually without going through the court's appraisal procedure, the case reversing the judgment of the court below which calculated the amount of damages caused by the loss of goods by employing the said damage evaluation statement, which was prepared in violation of the empirical rule, on the ground that there is no reasonable ground, such as the premise that the value of the maternity, goods, etc. which was presumed to have been manufactured for three to four years, increases as much as the inflation rate was increased

[1] Article 202 of the Civil Procedure Act / [2] Articles 202, 334, 335, 338, and 341 of the Civil Procedure Act / [3] Articles 202, 334, 335, 338, and 341 of the Civil Procedure Act

[1] Supreme Court Decision 87Meu400 delivered on June 23, 1987 (Gong1987, 1236) / [2] Supreme Court Decision 91Da44674 delivered on April 10, 1992 (Gong192, 1543)

Plaintiff (Law Firm Han, Attorneys Yu-hwan et al., Counsel for the plaintiff-appellant)

Defendant 1 and one other (Law Firm Inn, Attorneys Shin Young-young et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2009Na12971 decided December 3, 2009

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. As to Defendant 1’s ground of appeal No. 1

According to the reasoning of the judgment below, if Defendant 1 entered into a storage contract on the goods of this case with Defendant 2 on behalf of the Plaintiff, the court below held that, in light of the following circumstances acknowledged by the evidence adopted by the court below, Defendant 1 is deemed to have handled a custody director other than a general director, packing director, and packing director, and that, if Defendant 1 entered into a storage contract on the goods of this case with Defendant 2 on behalf of the Plaintiff, the contractor should enter the contract in the name of the Plaintiff, and the phrase “payment of the cost of storage” as well as the phrase “period of storage (6/26-8/26)”, among the main terms and conditions of the ○○ profit frame operated by Defendant 1, Defendant 1 introduced the ○ profit frame as packing, general, and specialized storage company, and that “the claim of the fee of storage director shall follow unless otherwise agreed,” Defendant 1 shall be deemed to have been handled in accordance with the agreement of this case as well as the fact that the nominal owner of the contract of this case was made in the name of Nonparty 1’s employee.

In light of the evidence duly admitted by the court below and the first instance court, the above fact-finding and judgment of the court below are just and acceptable, and there is no violation of the law regarding the rules of evidence.

2. As to Defendant 1’s ground of appeal No. 2

In order to regard a certain document as a disposal document, it is necessary to prove that the act in the public law or private law is performed by the document, and even if the content of the document concerns the person who prepared the document's own legal act, if the legal act is reported and described as an external fact, or its opinion or appreciation is stated, it is not a disposal document (see Supreme Court Decision 87Meu400, Jun. 23, 1987, etc.).

However, on its face, Eul evidence No. 1 prepared by the plaintiff is the purport that "the contract No. 2 of this case concluded with defendant 2 shall be directly contracted by the plaintiff, and the plaintiff was absent to the defendant 1, and it is clear that the plaintiff stated the plaintiff's memory or concept as to the conclusion process of the contract No. 2 of this case, and it does not constitute a disposition document, and it cannot be deemed that the plaintiff was exempted from liability for damages due to the loss of the goods of this case only with the statement of the above documentary evidence, and therefore, the ground for appeal No. 2 of this part cannot be accepted.

3. As to Defendant 2’s ground of appeal No. 1

According to the reasoning of the judgment below, the court below held that even if Defendant 2 and Nonparty 2 prepared a contract agreement on the signboard work with Defendant 2 and Nonparty 2, Defendant 2 constitutes an employer of Nonparty 2, etc., and thus, Defendant 2 is liable to compensate for the damages caused by negligence of Nonparty 2, etc.

Examining the evidence duly adopted by the first instance court and the lower court in light of the relevant legal principles, the above determination by the lower court is just and acceptable, and there is no error in the misapprehension of laws as to the rules of evidence or the misapprehension of legal principles as to employer liability.

4. As to Defendant 1’s ground of appeal Nos. 3 and Defendant 2’s ground of appeal

A. Although the appraisal opinion is not necessarily withdrawn from the lawsuit by means of an appraiser examination under the Civil Procedure Act and a document stating the appraisal opinion prepared by a person with professional knowledge and experience outside the lawsuit is submitted by documentary evidence, the fact-finding court recognizes it as reasonable and reliable (see, e.g., Supreme Court Decision 91Da44674, Apr. 10, 1992). However, where the original appraisal order or it is deemed necessary after designating a person with knowledge and experience as an appraiser for the purpose of supplementing the judge's knowledge and experience as an expert, the original appraisal shall be entrusted to a public agency, school, other organization with considerable facilities, or other authoritative institution such as a foreign public agency, etc. (see, e.g., Articles 34, 338, 341, etc. of the Civil Procedure Act). If the appraisal opinion submitted by the parties with documentary evidence cannot be obtained by the court's entrustment or entrustment, if one party's opinion is more likely to be easily and more likely to request the court to adopt the appraisal without reasonable doubt, it.

B. The lower court determined that the Defendants were liable to compensate the Plaintiff for damages caused by the loss of the instant goods, and, in calculating the amount of compensation, the Plaintiff prepared by requesting a damage adjusting company individually without going through the court’s appraisal process during the course of the first instance trial, and employed a damage evaluation document (Evidence A 10) submitted by documentary evidence as it is, and recognized the value at the time of the loss of the instant goods as KRW 288,372,066.

C. However, in light of the above legal principles, we cannot accept the judgment of the court below as it is.

First, in light of the record of the above damage evaluation statement, the damage adjuster prepared the above damage evaluation statement, namely, the damage from the destruction of the inventory assets (movable assets) among the instant goods, i.e., various counterfeit goods (e., liquid books, etc.) held by the Plaintiff, shall be calculated as manufacturing cost, excluding profits, from the total amount of general management expenses, such as the processing, assembly costs, and various taxes (record 142 pages). As a specific evaluation criteria, "The average manufacturing cost was calculated at the time of the accident by reflecting the price index based on the price index according to the price fluctuation publicly notified by the Bank of Korea at the time of the first production of each item, and the purchase, sale confirmation, and market survey submitted by the customer, after confirming that the manufacturing cost was 17.6% of the consumer price comparison, the above manufacturing cost was determined to be appropriate and the final manufacturing cost was determined to be the final manufacturing cost."

However, even if examining the whole of the above adjustment statement, it is difficult to find out all the content of how it was prepared on the basis of who was prepared on the basis of the calculation of the above value, as the “statement of cost of production prepared at the time of the first production” was not attached.

In addition, even when examining the confirmation of purchase and sale (record 219-23) that the above adjuster was submitted by a customer in order to verify the propriety of the initial manufacturing cost, each of the above confirmation certificates is merely prepared and delivered to the purport that the plaintiff had a transactional relationship with the above adjustment rather than transaction evidentiary data, such as tax invoices, etc. received at the time of production of the above counterfeit items, etc., and it is doubtful about its credibility, and the statement itself does not indicate any specific transaction period and does not specify the unit price. However, as can be seen by the record of the evidence No. 2 duly adopted by the court below and the first instance court and the fact-finding with the director of the Namyang-ju District Tax Office, the plaintiff operated the "Mayang unemployment" manufacturing the maternity items, etc. from July 2, 1998, but at least after the payment of value-added tax accrued in February 203, 2004, it cannot be seen that there was no record of the first purchase or sale of the above presumed fire No. 375, etc. 4.

On the other hand, with respect to the collection cost of the instant goods and the household effects of the instant goods, the value is assessed by the method of provisional adjustment according to the period of use at the original cost (i.e., uniform evaluation method or cost method), and with respect to the original inventory assets (movable assets), the value is calculated by “the method of reflecting the price index in the initial cost price index”.

However, in order to correct the evaluation method of the inventory assets in the above evaluation statement, it should be premised on the fact that the value of the above inventory asset (exchange value) was increased by the time of the first manufacturing, rather than the time of the first manufacturing, and even if the above inventory asset was not actually used, it cannot be deemed that the said inventory asset was not reduced due to the lapse of time, and in addition, considering that the above inventory asset is a maternity funeral, etc. which is sensitive to the spread of the inventory asset, it is obviously contrary to the empirical rule, rather than a decline in the value of the goods manufactured 3 to 4 years, rather than a rise in the inflation rate.

Nevertheless, the court below calculated the amount of damages incurred from the loss of the goods of this case by reliance on the damage evaluation statement prepared without reasonable grounds and contrary to the empirical rule. Thus, the court below erred by finding facts contrary to the empirical rule or by misapprehending the legal principles on the calculation of damages, which affected the conclusion of the judgment.

5. Conclusion

Therefore, without examining the remaining grounds of appeal by Defendant 1, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Young-chul (Presiding Justice)