2014 Ghana 12408 Damage (as such)

Yang-○

Attorney Choi Young-young, Counsel for the defendant-appellant

High 1. Dozed ○

2. Jeju Special Self-Governing Province.

The representative of the Do Governor shall do so.

Attorney Lee In-bok, Counsel for the defendant-appellant

June 23, 2015

July 14, 2015

1. Defendant Do○○○ shall pay to the Plaintiff 78,750,000 won with 5% per annum from July 26, 2013 to September 12, 2014; and 20% per annum from the next day to the day of full payment.

2. The plaintiff's claim against the defendant Jeju Special Self-Governing Province is dismissed.

3. Of the costs of lawsuit, the part arising between the Plaintiff and the Defendant Do○○ is assessed against the Plaintiff, and the part arising between the Plaintiff and the Defendant Jeju Special Self-Governing Province, respectively.

4. Paragraph 1 can be provisionally executed.

The judgment in Paragraph (1) and Paragraph (1) of this Article and the judgment of the Jeju Special Self-Governing Province purporting to pay to the plaintiff 78,750,000 won in collaboration with the defendant Hu○○○ and 5% per annum from July 26, 2013 to the service date of a copy of the complaint in this case, and 20% per annum from the next day to the day of full payment.

1. Basic facts

A. Defendant Do○○ was appointed as a public official on or around March 10, 2004 and served as a public official in charge of education at Defendant Jeju Special Self-Governing Province (hereinafter “Defendant Do”) (hereinafter “Defendant Do”) from the early January 2013.

B. Defendant Do○○ intended to obtain money by forging relevant documents using the fact that he/she is a public official in Jeju-do, as a facility voucher project cost, etc., and then, around June 2013, Defendant Do○○○ may receive the remainder of the national subsidy if the Plaintiff paid 30% of the national subsidy to the Plaintiff as a pilot project of the establishment of a foundation for production of hot water and hot water in 2013, and then let the Plaintiff receive the passbook deposited in KRW 18,750,000 on July 12, 2013 from the Plaintiff and deposit KRW 15,000 on July 26, 2013 with Nonparty ○○ Company (hereinafter referred to as “○○ Company”).

C. On November 2013, 2013, the Plaintiff entered into a contract to install a building project for installation of 112,50,000 square meters with the non-party company (i.e., advance payment of KRW 33,750,000 + the remainder of KRW 78,750,000) with the non-party company, and a contract for construction works for installation of 3,037 square meters with the opposite party, which was agreed on December 14, 2013 on December 14, 2013. The Plaintiff was agreed by the statement of the Defendant Hu○○○ with respect to the area of the soil subject to construction, the timing for payment, etc.

D. On December 14, 2013, the non-party company completed the structural construction to the Plaintiff by December 14, 2013, and submitted a schedule of the scheduled construction process to perform construction works in the order of the water supply system, the general drainage system, the opening and closing machine, and the clothes construction after the lower order of December 2013, and completed the construction works on February 2014.

E. On March 10, 2014, the Plaintiff was issued a letter of commitment (Evidence A 3-141) to the effect that the Plaintiff would pay KRW 78,50,000,00,000 upon finding that he/she knew that the Defendant He/she had deceptioned himself/herself.

F. Defendant ○○○○ was prosecuted on April 8, 2014 as a crime, including fraud, etc. on Jeju District Court Decision 2014Ma371, and on September 12, 2014, the said court rejected Defendant 1’s money from Defendant 2 to 40 million won, citing that Defendant 1 was the victim’s Gangwon-si’s house located in Seopo-si, Seopo-si, 2013, and provided subsidies for the improvement of the Defendant’s deposit passbook. The total project cost of KRW 28 million was KRW 8 million if Defendant 20 million was to be paid. However, Defendant 1 did not have any intent or ability to receive national aid money from the victim under the name of KRW 50,000,000, which was 400,000,000,000 won. However, Defendant 200,000 won was 40,000 won by deceiving Defendant 281,280,000 won.

[Reasons for Recognition]

Between the Plaintiff and Defendant Hu○○: Confession

The plaintiff and defendant Jeju-do: The non-satisfy, Gap's 1 through 9, Eul's 1 through 8 (including each number), Eul's 1 through 8, the witness's testimony and the purport of the whole pleadings.

2. Determination,

A. The plaintiff's assertion

Defendant Hu○○, who is a public official belonging to the Defendant Jeju-do, had the Plaintiff receive the State subsidy related to the facility load as above in the course of performing his duties, and had the Plaintiff bear the obligation of KRW 112,50,000 on behalf of the non-party company, thereby causing damage to the Plaintiff, which constitutes KRW 78,750,000, which is equivalent to 70% of the scope within which the subsidy was paid among them. A local government has a duty to compensate for damage when a public official causes damage to another person due to an intentional or negligent violation of the statutes while performing his duties (Article 2(1) of the State Compensation Act), and the Defendants are jointly liable to compensate for the said damage suffered by the Plaintiff due to the above tort committed by Defendant Hu○○○.

B. Determination as to the claim against Defendant Hu○○

1) Confession judgment (Article 208(3)2 of the Civil Procedure Act)

2) Therefore, Defendant Hu○○ is liable to pay the Plaintiff damages for tort damages calculated by applying the rate of KRW 78,750,000 to the Plaintiff and 5% per annum under the Civil Act from July 26, 2013, the date of service of the copy of the complaint in this case, to September 12, 2014, and 20% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the following day to the date of full payment.

C. Determination as to the claim against the defendant Jeju-do

1) Occurrence of damages liability

A) If a public official intentionally or negligently causes damage to another person in violation of the Act or subordinate statutes, the State or local government shall compensate for such damage pursuant to the State Compensation Act (main sentence of Article 2(1) of the State Compensation Act). In this context, the term “in performing his/her duties” includes a direct act of performing duties of a public official or an act closely related thereto, and when determining it, the act itself must be objectively observed and viewed as a public official’s act of performing duties, even though it is not a substantial act of performing duties or there is no subjective intention of performing duties as an actor, it should be deemed that the act was performed by a public official while performing his/her duties (see, e.g., Supreme Court Decision 2004Da26805, Jan. 14, 2005).

B) As to the instant case, comprehensively taking into account the aforementioned facts and the purport of the entire arguments on the basis of the facts and evidence, the following circumstances are as follows. In other words, Defendant Do Governor: (a) was a public official belonging to the KAC who works at the KAC and who is a public official belonging to Jeju-do, and was able to receive a subsidy of 30% a balance of 70% of the project cost; and (b) actively induced the Plaintiff to hear the passbook deposited; (c) Defendant Do Governor appears to have known the head of the passbook deposited with his own charge and dealt with it; (d) Defendant Do Governor stated that the rest of the head of the passbook deposited with his own charge was to be dealt with; (e) Defendant Do Governor participated in the construction contract with the non-party company at the time of signing the construction contract with the Plaintiff; (e) Defendant Do Governor visited 2 times, including taking photographs on the Plaintiff’s orchard; and (e) Defendant Do Technology Institute was closely related to the above acts of Defendant Do Governor’s tort and its exercise on December 2013.

C) The assertion and judgment of Defendant Jeju-do

(1) The above tort committed by Defendant Do○○ is a public official belonging to Defendant Do who is not related to the duties of Defendant Do○○, and it cannot be seen as an act within the scope of Defendant Do○○○’s duties objectively and externally. Thus, Defendant Do did not compensate for the illegal conduct of Do○○○, which does not have business relationship.

Even if the above acts by Defendant Do○○○ constituted an act within the scope of official duty as a public official objectively and externally, the Plaintiff was well aware of the fact that the above acts by Defendant Do○○○ do not belong to the scope of duty, or actively responded to Defendant Do○○○’s tort in order to be selected as a person eligible for subsidies by unlawful means due to the desire that the Plaintiff intended to receive subsidies, and thus, the Plaintiff’s above acts cannot be claimed as anti-government’s damages against the Defendant Do as an anti-government juristic act.

(2) According to the above evidence, Defendant Do○ requested the Plaintiff to apply for a subsidy program by telephone, and the Plaintiff could recognize the fact that the Plaintiff did not prepare a subsidy program. However, in full view of the facts and the overall purport of the arguments on the evidence as seen earlier, Defendant Do○○ explained that Defendant Do○ was a business promoted by the Korea Agricultural Technology Institute, which the Plaintiff works for the Plaintiff, and Defendant Do○○ was a business promoted by 30% of the operating expenses, and the remainder of 70% of the operating expenses was self-paid. Since Do was a person in charge, it can be acknowledged that Defendant Do had been actively deceiving Defendant Do as having authority over the above program. Thus, it is insufficient to acknowledge that the Plaintiff knew that Defendant Do○○ was not authorized to grant a subsidy program by telephone, and there is no other evidence to acknowledge this otherwise.

In addition, even though the Plaintiff intended to become a person eligible for subsidies and committed an negligent act, such as taking care of Defendant Do○○○’s act without carefully examining the principal’s act and taking charge of his passbook, it is difficult to recognize that the Plaintiff’s act was not sufficient to offset such negligence by negligence, and that the Plaintiff’s act constituted an anti-social law rate, and thus, did not have any damage claim.

Therefore, this part of the defendant Jeju-do's argument is without merit.

2) Scope of liability for damages

A) Negligence offsetting;

If a local government is negligent in contributing to the occurrence and expansion of damage caused by a public official’s unlawful act, limiting liability to the State is consistent with the principle of fairness when determining the scope of the State’s liability.

In full view of the aforementioned facts and the purport of the oral argument as a whole, the following circumstances were comprehensively taken into account: ① there was no facility voucher project implemented by Defendant Do at the time; Defendant Do○○ did not have a position to take charge of the relevant work; even if Defendant Do○○ is a person in charge of national subsidy-related work, Defendant Do○ does not have an official authority to arbitrarily receive subsidies from a person who is not entitled to receive a national subsidy, without undergoing the legal procedure; ② Plaintiff did not prepare an application for a facility voucher-related work from Defendant Do○○ by telephone even at the time when the Plaintiff paid the said money to Defendant Do○○○○○; ③ the Plaintiff was not in charge of the Plaintiff’s official duty, and it was reasonable to take into account the fact that the Plaintiff was in charge of the Plaintiff’s official duty to receive a subsidy from Defendant Do○○○○’s official duty, and the Plaintiff was not in charge of the Plaintiff’s official duty to receive a subsidy from the Plaintiff’s official duty to receive a subsidy from the State Do○○○.

Therefore, Defendant Jeju-do has a duty to pay 39,375,000 won (i.e., KRW 78,750,000 x 50%) set-off of 50% from among the construction cost obligations of 78,750,000 equivalent to 70% of the construction cost obligations owed by the Plaintiff to the non-party company in collaboration with Defendant Do○○○.

B) The assertion and determination of offsetting the profit and loss of Defendant Jeju-do

(1) Defendant Jeju-do asserts that, through Defendant Do’s tort, the Plaintiff acquired a party’s vinyl of KRW 112,500,000, by means of Defendant Do○○○’s tort, it should be offset by profits and losses.

(2) Compensation for damages is for the purpose of compensating for actual damage. It is against the nature of compensation for damages to have the victim gain more profit than the actual damage. Therefore, when gain is made due to the same cause as the loss suffered (Supreme Court Decision 76Da2168 delivered on March 14, 1978). In this case, the plaintiff acquires a claim for compensation for damages that was made to the non-party company in Jeju-do due to Defendant Hu○○'s deception, at the same time, the plaintiff acquired a plastic house equivalent to 112,250,00 won constructed by the non-party company for the same reason. In light of the situation that the plaintiff was willing to use the above plastic house for the purpose of compensating for actual damage, it would result in the plaintiff's gain from the same cause as the loss suffered by the plaintiff. Thus, the plaintiff's claim for compensation for damages amounting to 70% of the above profits which the plaintiff deducted from the part borne by the plaintiff, 708,500,700 won shall be deducted from Jeju-do.

C) Sub-determination

Therefore, the defendant's self-government's liability to the plaintiff is 0 won based on the offsetting of profit and loss, so the defendant's above defense is reasonable, and the plaintiff's assertion is eventually without merit.

4. Conclusion

If so, the plaintiff's claim against the defendant Hu○○ is justified, and the claim against the defendant Do against the defendant Do shall be dismissed as it is without merit.

The Republic of Korea