[1] Whether the short-term extinctive prescription provision under Article 166 of the Commercial Code applies to the claim for damages of another person who is the owner of an article (negative)

[2] Whether the scope of "employee or agent of a carrier" under Article 789-3 (2) of the Commercial Code includes an independent contractor (negative)

[3] The case holding that an independent contractor cannot invoke a defense under Article 811 of the Commercial Code since he does not fall under the "employee or agent" under Article 789-3 (2) of the Commercial Code

[1] The short-term extinctive prescription on the liability of a warehouseman under Article 166 of the Commercial Act is applicable only to a claim of a bailor who is a contracting party to a warehouse business operator, and the claim of another person who is the owner shall not apply in the case where the deposited goods

[2] "Employees or agents" under Article 789-3 (2) of the Commercial Code refers to persons who perform their duties under the direction and supervision of the carrier under the employment contract or delegation contract, etc., and does not include independent contractors who operate their own business according to their own decision regardless of such direction and supervision.

[3] The case holding that an independent contractor cannot invoke a defense under Article 811 of the Commercial Code since he does not fall under "employee or agent" under Article 789-3 (2) of the Commercial Code

[1] Article 166 (1) of the Commercial Act / [2] Article 789-3 (2) of the Commercial Act / [3] Articles 789-3 (2) and 811 of the Commercial Act

Plaintiff (Law Firm Han, Attorney Jeon Young-young, Counsel for plaintiff-appellant)

Daeho Warehouse Co., Ltd. and one other (Law Firm Jeong-il, Attorney Kim Sang-won, Counsel for the plaintiff-appellant)

Seoul High Court Decision 2001Na18676 delivered on October 12, 2001

Of the part concerning the damages for delay of the judgment of the court below, the part of the judgment of the court below against the defendants exceeding the amount of 36,459,539 won for the defendant Daeho Warehouse Co., Ltd., and 121,531,79 won for the defendant Cho Jong-ho Co., Ltd. and 121,531,798 won for the existence of the defendant Co., Ltd. from August 19, 200 to May 31, 2003, and the amount exceeding the amount of 20 percent per annum from the next day to the full payment date is reversed, and the judgment of the court of first instance is revoked, and the corresponding part of the plaintiff's claims are dismissed. The remaining appeals by the defendants are dismissed. The expenses incurred between the plaintiff and the defendant Dae-ho Factory Co., Ltd. among the total costs of lawsuit shall be 10 minutes, and the remainder shall be borne by the plaintiff and the remainder by the plaintiff respectively.

1. As to the appeal by the defendant Kim Jong-ok

A. According to the reasoning of the judgment below, the court below rejected the defendant's assertion that the import agency contract of the goods of this case between the defendant's land owner company (hereinafter "the defendant's land owner") and the non-party's land trade company's land (hereinafter "high trade") is the ownership of the goods in consideration of the trade until the consideration trade sells and delivers the goods to the defendant's land owner after importing the goods of this case at its own expense by requesting the issuance of an import letter of credit and settling the amount of credit. In light of the records, the court below's finding of facts and determination of the court below are correct, and therefore there is error in the misapprehension of the legal principle as to comparative negligence, as it should be a ground for appeal.

2. As to the appeal by Defendant Dae-ho Warehouse Corporation

A. Examining the reasoning of the judgment below in light of the records, the judgment of the court below is just and there is no evidence to acknowledge that the existence of the defendant was legally released from the trade in consideration of the fact that the defendant was granted both the authority of delivery and sale as well as the authority of delivery and sale, and there is no error of law such as misconception of facts against the rules

B. The short-term extinctive prescription regarding the liability of a warehouseman under Article 166 of the Commercial Act applies only to a claim of a bailor who is a contracting party of a warehouseman, and does not apply to a claim of another person who is the owner in the case of a deposited article owned by another

In the same purport, the court below's rejection of the short-term extinctive prescription defense by Defendant Dae-ho Warehouse Co., Ltd. (hereinafter "Defendant Dae-ho"), is just, and there is no error in the misapprehension of legal principles as to the short-term extinctive prescription under Article 166 of the Commercial Act.

(c) "Employees or agents" under Article 789-3(2) of the Commercial Code refers to persons who perform their duties under the direction and supervision of the carrier under an employment contract or delegation contract, etc. and does not include independent contractors, regardless of such direction and supervision, who operate their own business.

The court below's decision that Defendant Dae-ho could not invoke defenses based on Article 811 of the Commercial Act as an independent contractor because he is an employee or agent under Article 789-3 (2) of the Commercial Act is just in accordance with the above legal principles and there is no error of law by misunderstanding facts due to violation of the rules of evidence or by misunderstanding the legal principles as to employees or agents under Article 789-3 (2) of the Commercial Act.

D. In light of the records, the plaintiff's claim of this case is a claim for damages caused by a general tort, and thus, the tort liability of the defendant Daeho Warehouse and the non-performance of the contract against the plaintiff are separately established. Thus, since the person responsible for the non-delivery of the goods of this case is a carrier, the plaintiff's claim against the carrier is a carrier, and the defendant Daeho warehouse cannot be directly claimed against the carrier, or since the claim against the carrier has been extinguished, the court below rejected all the plaintiff's claim against the defendant Daeho warehouse that the damage claim against the defendant Daeho warehouse has been extinguished under Article 183 of the Civil Act, and there is no error of law such as misunderstanding of facts due to a violation of the rules of evidence or misunderstanding of legal principles as to the liability of the carrier and the warehouse operator.

3. Ex officio determination on damages for delay

However, ex officio, the portion of "interest rate prescribed by Presidential Decree" in the main sentence of Article 3 (1) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings before the Amendment (amended by Act No. 6868 of May 10, 2003) was decided as unconstitutional by the Constitutional Court on April 24, 2003. Accordingly, the amended provision of the Act and the main sentence of Article 3 (1) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings (amended by Presidential Decree No. 17981 of May 29, 2003) provide that the statutory interest rate shall be 20 percent per annum for a case pending at the court at the time of the enforcement of the above amended Act. Thus, the court below accepted damages for delay at the rate of 20% per annum by applying the former provisions of the Act, thereby affecting the conclusion of the judgment.

4. Conclusion

Therefore, of the judgment of the court below as to damages for delay, the part against the defendants exceeding the amount of 36,459,539 won as to the defendant Dae-ho warehouse and 121,531,79 won as to the defendant Jong-ho warehouse and 121,531,79 won as to the 121,539 won as to the 121,531,798 won as to the 121,539 won as to the 121,531,79, and the 20,000 won as to the 121,531,500 won as to the 121,531,79 as to the 121,500 won as to the 20th of May 31, 2003, and

Justices Yoon Jae-chul (Presiding Justice)