2015Da227383 Compensation for damages

A

1. C:

2. D Co., Ltd. (formerly: E)

Seoul High Court Decision 2014Na2029344 Decided June 26, 2015

October 13, 2016

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

Defendant D’s appeal is dismissed.

The costs of appeal by Defendant D are assessed against the above Defendant.

The grounds of appeal are examined.

1. As to the ground of appeal on Defendant C’s employer liability

A. Where a contractor has reserved the right to direct and supervise the progress and method of work of a contractor, the relationship between the contractor and the contractor is substantially different from the relationship between the employer and the employee, and thus, the contractor cannot be held liable for damages caused by the illegal act of the contractor or the third party employed by the subcontractor. The contractor’s direction and supervision over the contractor, which serves as the basis for recognition of the relationship between the employer and the employee, refers to managing the execution itself by directly ordering, supervising, monitoring, and encouraging the operation and implementation of the specific work (see, e.g., Supreme Court Decision 83Meu153, Nov. 22, 1983).

B. The reasoning of the judgment below reveals the following facts.

1) On August 12, 2011, the Plaintiff used the instant building as a logistics warehouse of a discount store (hereinafter referred to as “GG discount store”) for the new placing of goods, clothing, etc., which he/she operated by leasing the instant building from the co-defendant B (hereinafter referred to as “B during the original trial”) of the lower court.

2) On April 26, 2012, B contracted the construction of solar power plants to Defendant C Co., Ltd. (hereinafter referred to as “C”) on the roof of a building in operation (hereinafter referred to as “Dong building”) as indicated in the lower judgment.

3) On August 24, 2012, Defendant C subcontracted to Defendant D Co., Ltd. (the trade name at the time was changed to the above trade name on March 21, 2014, which was changed to the above trade name; hereinafter referred to as “D”) the supply and installation of solar structures during the above construction, and D re-subcontracted construction of solar structures in the above solar structures during the above construction on the same day on the condition that D supplies I with materials such as solar cell boards, servers, and access teams.

4) On September 24, 2012, after being employed by I as a daily employee, the Codefendant F of the original trial (hereinafter referred to as the "F") did not take fire prevention measures, such as putting a steel string bridge on the roof of the solar structure on the roof of the working building, and putting a cover on the roof. As the fire that occurred in the process of the operation of the building falls out of the rainwater, the fire occurred in the operation of the building, and two buildings were set up on the adjacent building (hereinafter referred to as the "fire accident in this case"), and the Plaintiff's goods (hereinafter referred to as the "victim") such as shoess, clothes, etc. stored in the building in this case, were destroyed. Based on the above facts and facts, the lower court determined that Defendant C, based on the above facts, had a specific duty to direct and direct the construction work of Defendant D's labor contractor through J, thereby leading the employer or employee, as the Plaintiff's employee.

1) On September 24, 2012, which was the date of the instant fire accident, F stated, “On the roof of a building in operation under the direction of the police, the Defendant C was instructed to use the bridge on the roof of the building in operation.”

2) On the same day, the police was affiliated with the Defendant C, and the delivery and direction of the other part-time employees upon the direction of the Defendant C&C’s J director to the other part-time employees, and F is also the same part-time employee as if necessary in Defendant C. The construction work of the steel bridge was not during the construction schedule of the instant fire accident, but at around 10:00 on that day, the J director instructed F to install a steel bridge for the inspection of solar power plants in a building in operation.

3) On October 12, 2012, BDo 2012, at the police station, “Defendant C Business Employees Y installed solar power plants from Korea Electric Power Corporation to make profits from the sale of electricity to Korea Electric Power Corporation.” The Defendant C Director stated that the process of installing solar power plants from Defendant C C C Director was “the process of managing and supervising the installation of solar power plants and conducting safety management at the Korea Electric Safety Management Corporation after completion of the construction work.”

D. However, the above determination by the court below was based on the premise that J is a defendant C, which is difficult to accept for the following reasons.

1) According to the records, the following circumstances are revealed.

① On September 24, 2012, which was the date of the instant fire accident, the police stated as follows: (a) not only the statement as recognized by the lower court, but also that it belongs to the said company because it received work and daily allowances by receiving materials from Defendant C; (b) such statement is inconsistent with the content of the construction contract for solar power plants (b) dated August 24, 2012, written between Defendant D and I, and is also inconsistent with AB and J’s statement.

② On October 30, 2012, Defendant D’s representative director, at the police station on October 30, 2012, stated that “J director is the employee of Defendant D.” The representative director of Defendant C, through the representative director of Defendant C, subcontracted the supply and installation of solar structures in operation from Defendant C, and re-subcontracted the parts of solar structure assembly, distribution, line, and adjoining construction.” This statement is not only consistent with the J’s statement but also accords with the contents of the construction contract (goods supply certificate B; hereinafter referred to as “instant subcontract agreement”) and the re-subcontract agreement in this case.

③ On November 6, 2012, J made a written subcontract of this case with AC and the representative director AC of Defendant C, at the police office of Defendant C, and the Defendant C was well aware of the fact. Defendant D drafted a written subcontract of this case with AC and the instant sub-subcontract at the office of Defendant C. Defendant D, on the ground that the representative director only supplied solar structures, etc. and did not directly perform construction work, and thus, AB made a statement that “the construction of a bridge was ordered in the process of confirming the progress status to the outside partner.” The circumstances to deem that J made a false statement with respect to the company to which he belongs are consistent with the objective materials, like the above statements by AB.

④ On November 7, 2012, I drafted the re-subcontract with the representative director AB of Defendant D, who had been in charge of solar construction from the police for two years prior to the date of the instant fire accident. The reason why the police officer stated Defendant C as the daily worker of Defendant C at the time of the instant fire accident, is the original reason for the Defendant C to be placed at the construction site, and thus, it was said that any person would be working at the Defendant C if asked at the construction site. It is not directly affiliated with the said company, but F is the employee of the said company. Upon receiving Defendant D’s instructions, I reversed the statement that was made on the date of the instant fire accident, which was consistent with I’s reversal on June 4, 2013, and that the F and the large-scale investigation received were maintained as they were.

2) Examining the facts acknowledged by the lower court and the aforementioned circumstances in light of the legal doctrine as seen earlier, it is difficult to readily conclude that Defendant C’s affiliated position specifically ordered Defendant C to install a shooting bridge through J on October 12, 2012 solely based on the statements made by F and I at the police on the date of the instant fire accident and the statement made by B on October 12, 2012 by the police. Rather, there is sufficient room to deem Defendant C to have ordered and instructed I through J, a director affiliated with the lower court, to perform the said work. Nevertheless, the lower court concluded that Defendant C instructed and instructed I to perform the said work in detail on the grounds that it was the F’s employer employed by I, who is obligated to compensate the Plaintiff for the Plaintiff’s damage caused by the instant fire accident.

Therefore, the court below erred by misapprehending the legal principles on the employer's liability of the contractor, or by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules. The ground of appeal assigning this error is with merit.

2. As to Defendant D’s ground of appeal

A. As to the grounds of appeal on employer liability, in the case of so-called labor contract under which a contractor orders a contractor to conduct a specific act or contracts a specific project, the contractor is liable to compensate as an employer (see, e.g., Supreme Court Decision 81Da428, Feb. 8, 1983).

For the reasons indicated in its reasoning, the lower court determined that Defendant D, as an employer of F, has the duty to compensate the Plaintiff for the damages caused by the instant fire accident, since he re-subcontracted a specific labor service, such as assembly, distribution, line, and melting, and specifically directed and supervised F, who is an employee of F.

In light of the above legal principles and the records, the above judgment of the court below is just, and there are no errors in the misapprehension of legal principles as to the employer liability of the contractor, the violation of the rules of evidence, the incomplete hearing

B. As to the ground of appeal on calculation of damages

The court below acknowledged the fact that the plaintiff ordered the new and clothing carry-over goods at 30% of the normal price in accordance with the contract contract on the G main points that he entered into with the plaintiff, and sold the new and clothing carry-over goods at 50% of the normal price. In the case of clothing, 40% of the normal price after being supplied at 24% of the normal price and sold at 40% of the normal price (6.6% of the purchase price). The court below determined that the amount equivalent to the exchange value of the damaged goods of this case, which is the exchange value of the damaged goods of this case, is the sales price including the closing price, considering the following circumstances in its reasoning: (a) the damaged goods of this case are expected to be sold by applying the above sales price ratio; and (b) the plaintiff's total purchase price was calculated by deducting the purchase price equivalent to the total sales price of the damaged goods of this case from the total purchase price and the purchase price equivalent to 66.6% of the total sales price of the damaged goods of this case, and (c. 667.7.7.7.

C. As to the grounds of appeal on reduction of the amount of damages under the Act on the Liability for Fire Caused by Fire Caused by Fire Caused by Negligence, where a person liable to compensate for damage claims a reduction of the amount of damages under Article 3(1) of the Act on the Liability for Fire Caused by Fire Caused by Fire Caused by Negligence, the court may determine whether to reduce the amount of damages by taking into account the cause and scale of a fire, the subject and degree of damage, the cause of combustion and expansion of damage, the endeavor of the person who caused fire to prevent damage, the economic condition of the person liable to compensate and the victim, and other circumstances when determining the amount of damages, and the rate of mitigation thereof, unless it is deemed that it is remarkably unreasonable in light of the principle of equity (see, e.g., Supreme Court Decision 2010Da71318, Mar. 28, 2013).

The court below rejected the claim that Defendant D’s liability for damages was limited to 70% of the total amount of damages, on the grounds as stated in its reasoning, and that Defendant D’s claim to reduce the amount of damages under the Act on the Liability for Fire Caused by Negligence cannot be deemed to have any circumstance to reduce the amount of damages determined by limited liability, etc. on the grounds as stated in its reasoning.

In light of the above legal principles and records, the above determination by the court below is just, and there is no error in the misapprehension of legal principles as to Article 3 of the Act on the Liability for Fire Caused by Negligence.

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal by Defendant C, the part of the judgment below against Defendant C is reversed and remanded to the court below. Defendant D’s appeal is dismissed and the costs of appeal as to the dismissal of appeal are assessed against Defendant D. It is so decided as per Disposition by the assent of all participating Justices on the bench.

The presiding judge shall keep the record of the Justice

Justices Park Jae-hee in charge

Justices Park Young-young

Justices Kim Jae-in