[1] Whether a nominal user is liable to the nominal lender for a tort in the course of performing his/her duties (affirmative)

[2] The meaning of "a person supervising business in lieu of an employer" under Article 756 (2) of the Civil Code

[3] The case holding that a representative director who lent the company's name has an employer liability under Article 756 (2) of the Civil Code

[4] The burden of proving and proving the requirements for the exemption of employer's liability

[1] Where a person permits another person to use his/her name in connection with a certain business, if the business is internally run by the other person, and the other person’s nominal owner is not the employee of the other person, and there is no difference between the externally and externally expressed that the other person is the employee of the nominal owner, and if the person permitted to use the name causes damage to the other person by intention or negligence while performing his/her duties, the person permitted to use the name shall be liable to compensate for the damage under Article 756(1)

[2] "Person supervising business instead of an employer" under Article 756 (2) of the Civil Code refers to a person who actually supervises specific business instead of an employer in an objective manner.

[3] The case holding that where the representative director of a company uses the office of president of a company to take exclusive charge of the scrap metal-related business in the name of the company, but the business expenses are borne by the company, the profits are shared among them, and the other party's benefits are not paid separately, and where he received a report from others and led them, the representative director is a person who actually was in the position of appointing and supervising the other party in lieu of the company, and therefore, he is an employer liable under Article 756 (2) of the Civil

[4] In the case of liability under Article 756(1) and (2) of the Civil Code, an employer or a supervisor of affairs on behalf of an employer is not liable if he has paid considerable attention to the appointment of an employee and supervision of affairs, or if there are damages even if he has paid considerable attention, but such circumstances must be asserted and proved by the employer, etc.

[1] Article 756 of the Civil Act, Article 24 of the Commercial Act / [2] Article 756 of the Civil Act / [3] Article 756 of the Civil Act / [4] Article 756 of the Civil

[1] Supreme Court Decision 67Da2522 delivered on January 28, 1969 (No. 17-1, 80), Supreme Court Decision 94Da24176 delivered on October 25, 1994 (Gong1994Ha, 3095), Supreme Court Decision 95Da50462 delivered on May 10, 1996 (Gong1996Ha, 1816), Supreme Court Decision 97Da3798, 3804 delivered on March 25, 197 (Gong1997Sang, 198Sang, 1188) / [2] Supreme Court Decision 72Da2300 delivered on March 13, 197 (Gong1973, 73070 delivered on July 194, 209) / [30Da196394 delivered on July 1969, 209)

Han Shipping Co., Ltd. (Attorneys Kim Jong-hwan et al., Counsel for the plaintiff-appellant)

Defendant 1 and two others (Attorney Choi Jong-sat et al., Counsel for the defendant-appellant)

Seoul High Court Decision 96Na38782 delivered on November 21, 1997

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

The defendants' grounds of appeal are also examined.

1. According to the evidence of employment, the court below found Defendant 3, who was exclusively in charge of the business of importing and selling the scrap metal of Defendant 2 Co., Ltd. (hereinafter the Defendant Co., Ltd.), as Defendant 1, on October 18, 1994, that it had not been found that Defendant 1 had been engaged in the business of importing and selling the scrap metal of Defendant 2 Co., Ltd., Ltd. (hereinafter the Defendant Co., Ltd., Ltd.) and that it had not been found that Defendant 1 had been engaged in the business of purchasing the cargo of Defendant 2, who had not been engaged in the business of purchasing the cargo of this case 9,00 U.S. on the ground that, despite the fact that it had been found that it had not been engaged in the business of importing and selling the cargo of this case 9,000 U.S., the court below decided to purchase the cargo of this case 9,000 U.S. 2, which had not been engaged in the business of purchasing the cargo of this case 80.

In light of the records, the above fact-finding and judgment of the court below are just, and there is no error in the misapprehension of the rules of evidence against the defendant 3's intention or negligence as otherwise alleged in the ground of appeal.

2. As duly admitted by the court below, if the plaintiff set the ship of this case from the port of spring of the State of India on February 27, 1995, operated the ship of this case to the port above the State of Austria on February 27, 1995, and the plaintiff paid the operating expenses and insurance premiums as stated in its reasoning due to the operation of the ship of this case until May 2, 1995, until the departure of May 2, 1995, pursuant to the charter contract between the defendant company and the defendant company, the above amount of the plaintiff's expenditure constitutes damages caused by the tort of the defendant 3, and the defendant company still bears the obligation under the charter contract with the plaintiff, thereby affecting the plaintiff's damages due to the tort.

The judgment of the court below to the above purport is just, and there is no error of law by misunderstanding the legal principles as to damages in tort.

3. According to the facts and records duly admitted by the court below, Defendant 1, the representative director of the defendant company, was responsible for the business of importing and selling scrap iron in the name of the defendant company while having Defendant 3, who acquired U.S. nationality as his long-term friendship and returned to the Republic of Korea, to the position of the president of the defendant company. However, the expenses of the business are borne by the defendant company and the profits accrued therefrom are distributed among the defendant company, and the payment is not to be made separately to the defendant 3. On the other hand, the defendant 1 was practically supervised the execution of the business affairs of the defendant 3 by receiving a report from the defendant 3 on the issue of letter of credit, charter contract, and local shipment related to the import of scrap iron.

In cases where a person permits another person to use his/her name in connection with a business of another person, in which the business is operated jointly by the other person, and the other person’s nominal owner is not the employee of the nominal owner, the externally does not change from the perspective of expressing that the other person is the employee of the nominal owner, and if the permitted person causes damage to another person by intention or negligence in the course of performing his/her duties, the person who permitted the use of his/her name shall be liable to compensate for the damage pursuant to Article 756(1) of the Civil Act (see Supreme Court Decision 95Da50462, May 10, 1996). In light of the above facts, the judgment of the court below that the defendant, who permitted the use of his/her name in relation to the revenue and sales of scrap metal, should be liable for the tort committed by the defendant

In addition, "a person who supervises business affairs in lieu of an employer" under Article 756 (2) of the Civil Act refers to a person who is in a position to supervise specific business in lieu of an employer (see Supreme Court Decision 92Da10531, Jul. 28, 1992). According to the above, as seen earlier, Defendant 1 is a representative director of the defendant company, who is in the actual position to appoint and supervise the defendant 3. Thus, Defendant 1 cannot be deemed to be erroneous in the decision of the court below that Defendant 3's tort is responsible under Article 756 (2) of the Civil Act.

Meanwhile, according to the records, in the preparatory document dated July 23, 1996 as stated in the first instance court, the plaintiff stated that the defendant 1 employed the defendant 3 and was in the position of the president of the defendant company, and that the defendant 1 did not properly direct and supervise the situation of the scrap metal business but did not make a report by telephone and letter, and it is evident that the defendant 1 asserted the responsibility of the defendant 1 as the employer against the defendant 3 and submitted the evidence therefor. The above assertion can be deemed to be the purport of asserting that the defendant 1 is responsible as the supervisor of the affairs of the defendant 3 in lieu of the defendant company pursuant to Article 756 (2) of the Civil Act. Thus, the measure that recognized the liability under the above provision against the defendant 1 cannot be deemed to be unlawful.

In the end, the decision of the court below on this part is correct, and there is no error of law such as incomplete trial, misunderstanding of legal principles, omission of judgment, violation of the principle of pleading, or non-exercise of right of explanation, as otherwise alleged in the

4. With respect to the liability under Article 756(1) and (2) of the Civil Act, an employer or a supervisor of affairs on behalf of the employer shall not be liable for damages if he has paid a considerable attention to the appointment of his employee and supervision of affairs, or if he causes damage to his employee even if he has paid a considerable attention, and such circumstance shall be asserted and proved by the employer, etc. (see Supreme Court Decision 68Da578, Jan. 28, 1969), and even upon examining the record, the record did not show that the defendant company or the defendant 1 performed his duty of care in relation to the appointment and supervision of affairs to the defendant 3 until the court below reached the court below. In addition, according to the duly established judgment of the court below, the defendant company or the defendant 1 did not perform his duty of care in relation to the supervision of affairs by the defendant 3. Thus, the judgment of the court below did not err in the misapprehension of judgment or exercising the right

5. In light of the records, the judgment of the court below that held the plaintiff's fault ratio of this case to 30% is reasonable based on the facts duly admitted by the court below, and thus, the above judgment cannot be deemed to be unlawful on the ground of a substantial decision of rationality.

All of the grounds of appeal cannot be accepted.

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 Chocheon-sung (Presiding Justice)