[1] The elements for the establishment of joint tort

[2] The meaning of "helping and aiding" under Article 760 (3) of the Civil Code, and whether aiding and abetting a tort by negligence (affirmative)

[3] Whether the court should ex officio examine and determine the grounds for offsetting negligence (affirmative)

[1] Article 760 of the Civil Act / [2] Article 760 (3) of the Civil Act / [3] Article 396 of the Civil Act, Article 134 of the Civil Procedure Act

[1] [2] Supreme Court Decision 99Da41749 delivered on April 11, 200 (Gong2000Sang, 1172), Supreme Court Decision 2002Da35850 Delivered on January 10, 203 (Gong2003Sang, 616) / [1] Supreme Court Decision 200Da13900 Delivered on September 29, 200 (Gong200Ha, 2201) Supreme Court Decision 201Da2181 Delivered on May 8, 2005 (Gong201Ha, 1353), Supreme Court Decision 2005Da47014, 4701, 47021, 47038 delivered on January 26, 2006 / [3605Da394989 delivered on May 29, 205] Supreme Court Decision 209Da3295389 decided Jan. 29, 2006

Plaintiff 1 and one other

Defendant (Law Firm Haok, Attorneys Kim Man-ok et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2005Na51206 delivered on October 13, 2006

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

We examine the grounds of appeal.

1. On the first ground for appeal

In the case of a joint tort under Article 760 of the Civil Act which causes damage to another person jointly, if one of the persons jointly commits an act without requiring a common perception as well as a joint perception among the actors, and if the joint act is objectively related to the joint act, the joint tort is established by causing damage to the joint act in question (see Supreme Court Decision 2005Da47014, 47021, 47038, Jan. 26, 2006, etc.).

Meanwhile, Article 3 (3) of the same Act provides that an aided or aided person shall be deemed a joint tortfeasor, thereby imposing liability on an aided or aided person as a joint tortfeasor. Here, aid and abetting refers to all direct and indirect acts enabling or facilitating a tort. Not only to a case of commission but also to a case where a person liable for an act enables or facilitates the commission of a tortfeasor due to omission that does not take all measures to prevent it. In this case, negligence refers to a violation of this duty on the premise that the aided or aided person has a duty of care not to assist a tort. In order to hold the aided or aided person liable as a joint tortfeasor, there is a proximate causal relation between aiding and abetting and aided person's tort (see, e.g., Supreme Court Decisions 2003Da5358, 2003Da53565, 203Da53572, Apr. 29, 2005; 2003Da53572, Jan. 10, 2003).

Examining the reasoning of the judgment below in light of the records, the court below acknowledged the facts as stated in its reasoning based on the evidence adopted by the court below. The defendant paid more attention to the plaintiffs prior to actively soliciting the conclusion of the sales contract of this case, and notified them of the facts related to the business methods, financial management status, transaction details, etc. of the non-party company's non-party 1's duty of care not to assist the non-party 1's illegal act. However, in soliciting the plaintiffs to purchase the land located in the non-party 1, the non-party 1 did not take such confirmation measures as above, and only did the non-party 1 own the non-party company's land located in the non-indicted 1 and there were no reasonable reasons to believe that the non-party 2 did not know about the non-party 1's fraudulent act as to the non-party 1's illegal act because the non-party 1, the owner of the non-party 2's land located in the Seocho-Eup's registry after the conclusion of the sales contract of this case, and there were no more reasonable reasons to inform the plaintiffs's land development plan.

Therefore, we cannot accept the grounds of appeal pointing out the grounds for appeal.

2. On the second ground for appeal

The comparative negligence set-off system under the Civil Act is intended to take into account the obligee’s equivalent principle as to the occurrence of damages in accordance with the principle of equity in a case where the obligee fails to fulfill the duty of care required under the principle of good faith. Thus, even if the damages were caused or expanded due to such failure, it shall be deemed that there was negligence on the part of the injured party. If the injured party’s negligence is acknowledged, the court shall take into account the liability and amount of the damages, and shall take into account the fact in determining the liability and amount of the damages, and even if the obligor did not assert the fault on the part of the injured party, the court shall ex officio examine and determine it (see Supreme Court Decision 96Da30113, Oct

According to the records, the plaintiffs cannot be deemed to have actively complied with the business of the non-party 1 and the defendant's real estate speculation with the intent to accept the short-term profit and the non-party 1's resale, etc. for the purpose of personal increase of property. However, there are circumstances where the authenticity of the information on the land in the non-party 1 and the defendant's horses is not sufficiently verified, and it is reasonable to deem that the above circumstances affected the occurrence and expansion of the damages in this case. Thus, the court below should have taken this into account ex officio, as long as the above errors are acknowledged by the plaintiffs.

Nevertheless, the court below's failure to take this into account in examining and determining the existence and scope of the liability for damages of this case has influenced the conclusion of the judgment by omitting the judgment on offsetting negligence.

The ground of appeal pointing this out is with merit.

3. Conclusion

Therefore, the part of the lower judgment against the Defendant 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 Yang Sung-tae (Presiding Justice)