[1] Contents of the duty of a planning travel agency to ensure the safety of travelers

[2] Meaning of “performance assistant” under Article 391 of the Civil Act, and in a case where an performance assistant uses a third party for the performance of an obligation with the obligor’s consent or implied consent, whether the obligor is liable for the intent or negligence of the performance assistant under Article 391 of the Civil Act (affirmative)

[3] The case holding that where a local driver's negligence caused a traffic accident by a local driver employed by a company which has provided a local selective tour service through prior consultation with a planning travel agency, the travel agency's liability for damages is recognized

[1] A planning travel agency is a person who has expertise in the natural and social conditions of a destination as well as ordinary travel in general, and unilaterally determines the terms of a contract for the use of a destination or travel facilities in a superior position, while a travel agent is general to enter into a travel contract under the conditions presented by a planning travel agency and trust the safety of the travel agent. Considering this, in order to ensure the safety of the traveler's life, body, property, etc., a planning travel agency is required to take reasonable measures such as taking measures to remove the risks that the travel agent may face in advance during the implementation of the travel contract by sufficiently investigating and examining the travel destination, travel schedule, travel administration, and travel service agency's selection, etc., and giving the traveler an opportunity to choose whether to accept the risks, and if the terms and conditions used by the planning travel agency provide for the contents and scope of the travel agency's liability for the traveler, such duty shall be deemed to have been specified in detail.

[2] Article 391 of the Civil Code provides that a performance assistant's intentional or negligent act shall be deemed as an obligor's intentional or negligent act. Such performance assistant is sufficient for a person who performs an act of performance under the obligor's involvement in the obligor's intent and does not necessarily have to have a relationship with the obligor's instructions or supervision. Thus, whether he/she is subordinate or independent to the obligor is not an issue. Even where the performance assistant uses a third party as a performance assistant, if the obligor approves or implied consent to it, the obligor shall be liable for the intentional or negligent act of the performance assistant under Article 391 of the Civil Code.

[3] The case holding that in a case where Party A, a planning tour enterprise, entered into a package tour contract with Party B, provided that "where local travel enterprises or their employees inflict damages on travelers intentionally or negligently, by intention or negligence, us shall compensate for damages to travelers," and that "local travel enterprises or their employees shall be liable for damages to travelers with respect to the duties of Party A in the course of establishing and implementing the package tour plan from the departure to the arrival, and where Party B, etc. died due to negligence of local drivers employed by Party B, the case held that the terms and conditions of the above package tour contract specifically specify the travel enterprise's duty of safety consideration in accordance with the principle of good faith, which is to be borne by the travel enterprise as incidental to the package tour contract with the travelers, and that the business borne by the travel enterprise is limited to the distribution and intermediation of individual services, and that "local travel enterprises" under the terms and conditions of the package tour contract mean "on-site travel enterprises or their employees have given consent to use or implied consent to use at least" and thus, Company A is liable for damages to the travel enterprise Byung.

[1] Article 2 subparag. 3 and Article 12 of the Tourism Promotion Act, Articles 2, 390, and 680 of the Civil Act / [2] Article 391 of the Civil Act / [3] Articles 2 subparag. 3 and 12 of the Tourism Promotion Act, Articles 2, 390, 391, and 680 of the Civil Act

[1] Supreme Court Decision 98Da25061 Decided November 24, 1998 (Gong1999Sang, 5) Supreme Court Decision 2007Da3377 Decided May 10, 2007 / [2] Supreme Court Decision 98Da51077 and 51084 Decided April 13, 199 (Gong199Sang, 868), Supreme Court Decision 2001Da4438 Decided July 12, 2002 (Gong200Ha, 1940)

Plaintiff 1 and 3 others (Law Firm Jeong, Attorneys Park Dong-ho et al., Counsel for the plaintiff-appellant)

Han Investment Co., Ltd. (Attorneys Son Ji-yol et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2010Na41159 decided November 26, 2010

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

We examine the grounds of appeal.

1. The planning travel agency unilaterally determines the terms of a contract on the use, etc. of a destination or a travel facility in a superior position as a person who has professional knowledge about the natural and social conditions of a destination as well as ordinary travel, while a travel agency unilaterally determines the safety of a traveler and enter into a travel contract under the conditions as presented by a planning travel agency. Considering this, in order to ensure the safety of a traveler's life, body, property, etc., the planning travel agency shall be deemed to have established a safe consideration duty under the good faith principle to take reasonable measures such as taking measures to remove the risks that a traveler may face in advance during the implementation of the contents of a travel contract by sufficiently investigating and examining the travel destination, travel schedule, travel administration, and the choice of travel service agency, etc. in advance, or giving a traveler an opportunity to choose the risks in advance during the implementation of the travel contract. If the standardized travel contract used by a planning travel agency provides for the contents and scope of the liability to the travel agency, it shall be deemed to have specified the above safety consideration duty (see Supreme Court Decision 2007Da3757, Nov. 24, 19987).

Meanwhile, Article 391 of the Civil Act provides that the performance assistant's intentional act or negligence shall be deemed as the obligor's intentional act or negligence. Such performance assistant's intentional act or negligence shall be sufficient for a person who performs the act of performance of the obligation under the obligor's involvement, and it does not necessarily have to have the relationship with the obligor's instructions or supervision. Thus, whether he/she is dependent on the obligor or independent from the obligor is not an issue (see Supreme Court Decisions 98Da5107, 51084, Apr. 13, 199; 2001Da44338, Jul. 12, 2002; 2001Da44338, Jul. 12, 2002). In a case where the performance assistant uses a third party as the performance assistant, if the obligor approves or gives implied consent, the obligor shall be held liable for the intentional act or negligence of the performance assistant.

2. (1) After compiling the evidence adopted, the lower court acknowledged the facts as indicated in its reasoning. The Defendant concluded the travel contract between the deceased Non-party 1 and 2 (hereinafter “the deceased”) and the five hours from November 23, 2008 to Nov. 28, 2008, and five days from the travel destination (hereinafter “instant travel contract”) through the Defendant’s travel terms and conditions provided under the instant travel contract (hereinafter “instant contract terms and conditions”), and determined that the Defendant is liable for damages to the travelers if the local travel agency or its employees caused damages to the travelers intentionally or negligently due to the Plaintiff’s failure or negligence during the establishment and implementation of the travel plan (Article 14) or “the local travel agency or its employees, etc., from the departure to the arrival of the travel, are liable for damages incurred by the deceased’s failure or negligence in connection with the deceased’s duties in the process of the establishment and implementation of the travel plan (Article 17). The Defendant agreed to the extent that Nonparty 1 was liable for damages caused by the deceased’s local tour driver’s negligence or negligence.

(2) In light of the aforementioned legal principles and records, Articles 14 and 17 of the Terms and Conditions of this case specify the obligation of a travel agency to take care of safety in accordance with the principle of good faith, which the travel agency bears as an incidental duty to a package tour contract, and it is difficult to view that the business that the travel agency bears is limited to the distribution and arrangement of individual services in a package tour. It is reasonable to interpret that the "local travel agency" provided for in Articles 14 and 17 of the Terms and Conditions of this case means "the performance assistant or travel agency has consented to the use of, or has consented to the use of, the travel agency's local destination or travel agency at least at least."

In the same purport, the court below is just in holding that the defendant is liable for damages suffered by the deceased and the plaintiffs due to the accident in this case caused by the negligence of the employees of Orco Blue, a local travel agency, on the ground that it constitutes "local travel agency" of the standardized contract of this case, since the local selective tourist service was offered through prior consultation with the defendant. In so doing, the court below did not err by misapprehending the legal principles as to the package tour contract or the standardized contract of this case, or by failing to exhaust all necessary deliberations, as otherwise alleged in

3. 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 Lee Hong-hoon (Presiding Justice)