A. The meaning of “a person supervising the business in lieu of an employer” under Article 756(2) of the Civil Code

B. The meaning of "in relation to the execution of affairs" under Article 756 of the Civil Act and whether the employer is liable in cases where an employee has abused his/her position and seeks the interests of himself/herself or a third party by abusing his/her position without complying with the specific order or delegation of the supervisor (affirmative)

C. Whether an employer is held liable in cases where the victim knew or did not know by gross negligence that the illegal act of an employee does not constitute an act of performing his/her duties on behalf of the employer or the employer (negative)

A. Article 756(2) of the Civil Act provides that “a person supervising an employee’s business instead of the employer” refers to a person who is in a position to supervise a specific business in lieu of the employer from an objective point of view, and it does not necessarily mean that the employee is appointed.

B. The purport of Article 756 of the Civil Code is that, in principle, the act should be an act belonging to the scope of the employee's duty, or even if it is not itself, an act that appears to fall within the scope of the duty after observing the act's appearance, and if an employee does not comply with the specific order or delegation of the supervisor of the work in lieu of the employer or the employer and seeks his own or a third party's interests by abusing his position, it is contrary to the purpose of the Civil Code or the legislative intent to deny the employer's liability in lieu of the employer or the employee's subjective circumstances.

C. Even in cases where an employee's illegal act appears to fall within the scope of employer's execution of business, where the victim himself/herself knew, or was unable to know, due to gross negligence, that the employee's act does not fall within the scope of employer's execution of business, the employer's liability shall not be imposed on the employee, instead of the employer or the supervisor of the business.

Article 756 of the Civil Act

A. Supreme Court Decision 72Da2300 delivered on March 13, 1973 (Gong1973, 7307) (Gong1985, 1232), Supreme Court Decision 90Da8954 delivered on August 11, 1991 (Gong1991, 722), Supreme Court Decision 91Da39146 delivered on February 25, 1992 (Gong192, 1143). Supreme Court Decision 83Meu217 delivered on June 28, 1983 (Gong1983, 1139)

Korea

Attorney Kim Jae-re et al., Counsel for the defendant-appellant-appellee

Daegu High Court Decision 91Na3391 delivered on January 30, 1992

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

We examine the grounds of appeal.

On the first ground for appeal

1. According to the reasoning of the judgment below, the court below

A. The non-party Daeyang Construction Co., Ltd. (hereinafter referred to as the "Tyang Construction") subcontracted part of the work to the defendant under a contract for the construction of the above new construction of the Samsungsung Construction Co., Ltd., and the defendant required to do so, and the court below's joint defendant 1 Co., Ltd. (hereinafter referred to as a " one-time company") decided to rent and use one month with the driver, and the non-party 1 and the non-party 2, a driving engineer of the mid-term season, were dispatched from the defendant's construction site to the above construction site to the non-party 1's work site without the above construction site's work order, and the non-party 2, the non-party 1 and the non-party 2, a driving engineer of the above construction site, transferred the above construction site to the non-party 1 and the non-party 2's construction site for the above construction site to the non-party 1's construction site for the above construction site for the non-party 2's construction site.

B. Based on the facts of this recognition, the defendant is the person who is in the position of supervision over the affairs of the above non-party 1 in lieu of the company that is the employer, so the above non-party 1 was responsible for compensating for the damages suffered by the above non-party 4 due to the accident of this case caused by negligence in the execution of affairs

2. In light of the records, the above fact-finding by the court below is acceptable, and there is no violation of the rules of evidence selection.

3. The term “person supervising business affairs in lieu of an employer” under Article 756(2) of the Civil Act refers to a person in a position to supervise specific business in lieu of an employer objectively (see Supreme Court Decision 72Da2300, Mar. 13, 1973). It does not necessarily mean that he/she must appoint an employee.

Therefore, the court below is just in holding that the defendant is in the position of supervising the business of the non-party 1 on behalf of the non-party 1's employer, and there is no error of law by misapprehending the legal principles as to the employer's liability in the contract or subcontract relationship,

Therefore, there is no reason to discuss.

On the second ground for appeal

1. The meaning of Article 756 of the Civil Code provides that "in principle, with respect to the performance of an employee's duties" shall be an act falling under the scope of employee's duties, or even if an employee's performance of duties is not itself, an act that appears to fall under the scope of employee's duties shall be included in the appearance of the act (see Supreme Court Decision 84Meu979, Aug. 13, 1985). In a case where an employee uses his position without complying with a specific order or delegation of the supervisor's duties on behalf of the employer or the third party for the benefit of himself or the third party by abusing his position, the denial of the employer's liability according to the subjective circumstances of the employer or the employee's supervisor or the employee's performance of duties is against the purpose of the Civil Code or the legislative intent of the above Civil Code

Therefore, the court below's decision to this purport is erroneous in holding that, although non-party 1's mid-term adjustment work, which was the cause of the accident of this case, is not by the defendant's instruction or delegation, and is not by the defendant's order or delegation, it is a non-party 1's act similar to the original act of performing affairs in external light of external aspects.

2. However, even in cases where an employee's illegal act appears to fall under the scope of employer's execution of business, if the victim himself/herself knew, or was unable to know, due to gross negligence, that the employee's act does not constitute an act of performance of business by the supervisor of the relevant business in lieu of the employer or employer, the employer cannot be held liable for the employee (a person who supervises the business in a harsh manner) (see Supreme Court Decision 83Meu217, Jun. 28, 1983).

However, according to Gap evidence Nos. 1-4, 5 (Written Answer), 5-1 (written judgment), 6-5 (written trial records), and 7-7 (written evidence Nos. 7 (written evidence Nos. 4) committed by the court below, the non-party 3, a field agent of Hanra resources, took advantage of the flag of this case, was found to have been moving to his nearby work site, while the non-party 5, the head of the Working Group on the Construction Part of Hanra resources, was studying the method of making it easy for the plaintiff 4, a non-party 5, a party at the place of Hanra resources, taking advantage of the flag of this case, was playing at the nearby work site while he was studying the method of making it easy for the plaintiff 5, a party who was the non-party 4, a party at the work site, taking advantage of the fact that the above fact was moving to his nearby work site.

3. Despite this, the court below did not err in the misapprehension of legal principles as to the scope of performance of affairs in the employer's responsibility, which led to the failure of the defendant's employer liability without examining whether the work causing the accident of this case was related to the defendant specifically, and whether the victim non-party 4 knew of the fact that the defendant was in a supervisory position on behalf of the above non-party 1 in lieu of the same company.

Therefore, the issue is justified within this scope.

Therefore, without further proceeding to decide on the remainder of the grounds of appeal, the part against the defendant among the judgment below is reversed, and that part of the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating

Justices Kim Jong-soo (Presiding Justice)