[1] Requirements for the establishment of joint tort and whether joint tort can be recognized in cases where joint tort is jointly related to the occurrence of damage (affirmative)

[2] In a case where a person liable to compensate for damage did not assert the victim's negligence but the victim's negligence is recognized based on the litigation data, whether the court shall ex officio examine and determine the case (affirmative)

[3] In a case where a part of a tortfeasor intentionally committed a tort by using the victim's care, whether another tortfeasor who has no such reason can assert the comparative negligence (affirmative)

[4] The case where limitation of liability based on the principle of comparative negligence and fairness is allowed in intentional tort using the victim's care

[1] Joint tort under the Civil Act is established when multiple persons’ objectively related joint acts cause damage to others, and neither a conspiracy among the actors nor a common intent nor a common perception is required. In addition, joint acts may be recognized as jointly related to the occurrence of damage, such as the acquisition of stolen goods by embezzlement, as well as the cases where a joint act is jointly engaged in, or in aiding and abetting, a tort itself or jointly related to the occurrence of damage by acquiring stolen goods by embezzlement. Such a legal doctrine likewise applies to cases where damage is sustained by making it difficult or impossible to recover from damage caused by a specific crime because it is recognized that the property acquired by a specific crime under the Act on Regulation and Punishment of Criminal Proceeds Concealment is a property

[2] If the victim was negligent in causing or expanding damage caused by a tort, it shall be taken into account as a matter of course in determining the scope of compensation for damage by the perpetrator, and even if the person liable for damage did not make any assertion about the victim's negligence, the court shall ex officio examine and determine the scope of compensation for damage.

[3] Although it is not permissible for a person who intentionally committed a tort by taking advantage of the victim's negligence to claim a reduction of his/her liability on the ground of the victim's negligence, this is due to the fact that allowing a person who has such a ground to claim a set-off of negligence is contrary to the principle of good faith. Thus, it does not mean that some of the tortfeasors can not assert a set-off of negligence even other tortfeasors who have no such ground.

[4] It is not allowed for a person who intentionally committed a tort by taking advantage of the victim's care to claim a reduction of his/her liability on the ground of the victim's negligence. This is because, in cases where such intentional tort constitutes an acquisition act, if the limitation of liability such as offsetting negligence is recognized, the perpetrator ultimately possess profits from the tort and bring about a result contrary to the principles of equity or good faith. Thus, even in cases of intentional tort, if the above result is not caused, it is possible to limit liability based on comparative negligence and the principle of equity.

[1] Articles 750 and 760 of the Civil Act, Article 2 subparagraph 1 of the Act on Regulation and Punishment of Criminal Proceeds Concealment / [2] Articles 396 and 763 of the Civil Act, Article 134 of the Civil Procedure Act / [3] Articles 396, 760, and 763 of the Civil Act / [4] Articles 393, 396, and 763 of the Civil Act

[1] Supreme Court Decision 2001Da2181 Decided May 8, 2001 (Gong2001Ha, 1353), Supreme Court Decision 2012Da44969 Decided April 11, 2013 (Gong2013Sang, 848) / [2] Supreme Court Decision 96Da3013 Decided October 25, 1996 (Gong196Ha, 3434), Supreme Court Decision 2008Da5120 Decided August 20, 209 (Gong2009Ha, 1516) / [3] Supreme Court Decision 2007Da7768 Decided June 28, 2007 / [4] Supreme Court Decision 2007Da68675 Decided June 26, 207

Lartdo Co., Ltd.

Defendant 1 and 3 others (Law Firm KS et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2012Na41863 decided April 4, 2013

The part of the lower judgment against the Defendants is reversed, and that part of the case is remanded to the Seoul High Court.

The grounds of appeal are examined.

1. Determination on Defendant 1’s grounds of appeal Nos. 1 and 2, and on Defendant 2, Defendant 3, and Defendant 4’s grounds of appeal

Joint tort under the Civil Act is established when several persons’ objectively related joint acts cause damage to others, and neither a conspiracy among the actors nor a common intent nor a common perception among them is necessary. In addition, such joint acts may be recognized as jointly related to the occurrence of damage, such as the acquisition of stolen property resulting from embezzlement, as well as the case where a joint act is jointly engaged in or in aiding and abetting and abetting a tort itself (see, e.g., Supreme Court Decisions 2001Da2181, May 8, 2001; 2012Da44969, Apr. 11, 2013). Such a legal doctrine also applies to cases where, recognizing that the property acquired through a specific crime as prescribed by the Act on Regulation and Punishment of Criminal Proceeds Concealment is a property acquired through the specific crime, and thus making it difficult or impossible to recover from damage due to the specific crime due to their concealment and preservation, etc., and thus making it difficult or impossible to continue the damage.

According to the reasoning of the judgment below and the evidence duly admitted by the court below, ① Co-defendant 2, the representative director of the plaintiff, requested the defendant 2, the defendant 330 million won in total from November 13, 2009 to November 30, 2009, and embezzled from the plaintiff's corporate bank account to the 100 million won check or the 20 million won check, ② Co-defendant 2 of the court of first instance requested the defendant 1, the 400 million won in total before leaving the Republic of Korea on December 1, 2009, or transferred the 40 billion won in total to the defendant 2, the 400 billion won in total to the defendant 1, the defendant 2, the 400 billion won in total, or the 1,000 million won in total to the defendant 2, the 600 million won in total, and the 1,200 million won in total to the defendant 2, the co-defendant 1, the 2009.

Examining the above facts in light of the legal principles as seen earlier, even if the Defendants did not specifically conspired for the embezzlement of Co-Defendant 2 of the first instance trial, it appears that the Defendants, as co-defendant 2 of the first instance trial, were aware that they intended to conceal the large amount of money acquired unlawfully, and thus, they appear to have concealed in cash or small-sum checks, or delivered or kept cash or small-sum funds. Accordingly, it is clear that the Defendants would have sustained losses caused by embezzlement by making it difficult or impossible to recover the Plaintiff’s damage. As such, such money laundering and embezzlement by Co-Defendant 2 of the first instance trial were objectively related to the Defendants, and as long as the Plaintiff was incurred by the relevant co-defendant 2’s joint act, the Defendants are liable for damages against the Plaintiff as joint tortfeasor.

Although the reasoning of the judgment below on this part is inappropriate, the court below is just in holding that the defendants are jointly and severally liable with the co-defendant 2 of the court of first instance as joint tortfeasor due to the act of cleaning and storing embezzlement funds. There is no error of law by misapprehending the legal principles on the establishment of joint tort and proximate causal relation, etc. as alleged in the grounds of appeal.

2. Determination as to Defendant 1’s ground of appeal No. 3 and determination as to this point ex officio as to Defendant 2, Defendant 3, and Defendant 4

A. If the victim was negligent with regard to the occurrence or expansion of damage caused by a tort, it shall be naturally taken into account in determining the scope of the tortfeasor’s compensation, and even if an obligor for compensation did not assert the victim’s negligence, the court shall examine and determine it ex officio (see Supreme Court Decisions 96Da30113, Oct. 25, 1996; 2008Da51120, Aug. 20, 2009; 2008Da5120, etc.). Meanwhile, if a person who intentionally committed an illegal act using the victim’s care intentionally causes the victim’s negligence to reduce his/her liability on the ground of the victim’s negligence, it is unreasonable to allow a person who has such reason to assert the comparative negligence against the principle of good faith, and thus, it is unreasonable to interpret that another tortfeasor who does not have such reason constitutes a tort cannot finally assert the victim’s liability for comparative negligence (see Supreme Court Decision 2007Da6775, Jun. 28, 2007).

According to the records, since Co-Defendant 2 of the court of first instance assumed office as the representative director of the plaintiff on July 20, 2009, the plaintiff arbitrarily released 5.72 billion won from the plaintiff's corporate bank account from October 30, 2009 to November 12, 2009 and embezzled 5.72 billion won from the plaintiff's corporate bank account at will during six times from November 30, 2009, and had concerns over the occurrence of the above embezzlement, it is reasonable to view that the above embezzlement has an effect on the occurrence and expansion of the damage of this case.

Therefore, if the Defendants did not share the amount of embezzlement or enjoy certain benefits therefrom with co-defendant 2 of the first instance trial, it cannot be deemed that the limitation of liability, such as comparative negligence, does not result in a result contrary to the principle of fairness or the principle of good faith by having the Defendants ultimately possess the benefits arising from the tort. Thus, inasmuch as the Plaintiff’s error is acknowledged, the lower court should have taken this into account ex officio. Nevertheless, the lower court did not take this into account in examining and determining the existence and scope of the instant liability for damages. In so doing, the lower court erred by misapprehending the legal doctrine on comparative negligence, thereby adversely affecting

B. Meanwhile, in the instant case, the Plaintiff claimed against Co-Defendant 2 of the first instance court for partial claim payment of KRW 1 billion and damages for delay thereof, and sought against the Defendants, the said KRW 1 billion and damages for delay are individually or jointly paid with Co-Defendant 2 of the first instance court.

However, on the grounds stated in its reasoning, the lower court determined that Defendant 1 and co-defendant 2 are jointly and severally liable with Co-Defendant 2 of the first instance court for KRW 3.1220 million and jointly and severally with Co-Defendant 2 of the first instance court for KRW 2.378 million out of the above KRW 3.1278 million, jointly and severally with Co-Defendant 2 of the first instance court for KRW 2.3778 billion, and Defendant 2 jointly and severally with Co-Defendant 2 of the first instance court for KRW 2.378 billion, and Defendant 4 is jointly and severally and severally liable with Co-Defendant 2 of the first instance court for KRW 1.948 billion out of the above KRW 2.378 billion, and Defendant 4 is jointly and severally liable with Co-Defendant 2 of the first instance court for the remaining amount excluding the above KRW 1.948 billion and KRW 48 billion.4 billion.

As such, insofar as it is deemed that there exists no overlap between Defendant 2 and Defendant 400 million won that Defendant 2 is liable, even if the part that Defendant 2 and Defendant 4 are liable respectively overlaps with the part that Defendant 2 and Defendant 1 and Defendant 3 are jointly and severally liable with the co-defendant 2 of the first instance court, it cannot be ordered that Defendant 4 pay KRW 400 million out of the 1 billion amount jointly and severally with the co-defendant 2 of the first instance court. The lower court should have determined that the part that the Plaintiff is jointly and severally liable with the co-defendant 2 of the first instance court, Defendant 1, Defendant 3, and Defendant 2 included in the part that is jointly and severally liable by the Plaintiff, and that the remaining part that is included in the part that is jointly and severally liable by Defendant 2, Defendant 3, and Defendant 4 included in the part that is jointly and severally liable by the first instance court.

The judgment of the court below is erroneous.

3. Conclusion

Therefore, the part of the lower judgment against the Defendants is reversed, and that part of 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 Park Sang-ok (Presiding Justice)