[1] Whether it can be viewed that there is a possibility for an execution creditor to have suffered loss in the event that a mailman engaged in the delivery business of a special delivery mail served an unlawful original copy of the determination of seizure and assignment order (affirmative)

[2] In a case where a mailman prepared a report as if he had made a lawful service even when he had made an improper service in the special service of the original copy of the determination of seizure and assignment order, but the execution creditor failed to receive the claim subject to seizure entirely because the seizure and assignment became effective, whether the State is liable to compensate for the damage of the execution creditor (affirmative)

[1] It is reasonable to view that if a mailman engaged in the delivery service of a special delivery mail fails to properly serve the original copy of the decision on seizure and assignment order, he/she may sufficiently anticipate that no certain effect as prescribed by the Acts and subordinate statutes may occur and thereby, may cause an obstacle to the realization of people's rights, thereby resulting in the party's non-damage.

[2] In a case where a mailman prepared a report on postal service as if he/she had made an unlawful service in violation of the Civil Procedure Act in the course of specially delivering an original copy of the determination of seizure and assignment order, and formed an appearance as if he/she had made a lawful service, but in fact, he/she did not have the effect of seizure and assignment, thereby causing damage to the execution creditor by preventing the execution creditor from receiving the entire claim subject to seizure, it is reasonable to view that there is a proximate causal relationship between the mailman's breach of his/her duty and the damage to the execution creditor, and the State is liable to compensate for such

[1] Article 750 of the Civil Act, Article 2 of the State Compensation Act, Article 23 of the Civil Execution Act, Article 15 (2) of the former Postal Service Act (amended by Act No. 7446 of Mar. 31, 2005), Articles 25 (1), 62, and 63 of the former Enforcement Rule of the Postal Service Act (amended by Ordinance of the Ministry of Information and Communication No. 64 of Jan. 21, 199) / [2] Article 750 of the Civil Act, Article 2 of the State Compensation Act, Article 23 of the Civil Execution Act, Article 23 of the Civil Execution Act, Article 15 (2) of the former Postal Service Act (amended by Act No. 7446 of Mar. 31, 2005), Articles 25 (1), 62, and 63 of the former Enforcement Rule of the Postal Service Act (amended by Ordinance of the Ministry of Information and Communication of Jan. 21, 21999)

[1] Supreme Court Decision 98Da2631 delivered on September 22, 1998 (Gong1998Ha, 2545) Supreme Court Decision 2005Da62747 Delivered on December 27, 2007 (Gong2008Sang, 112) / [2] Supreme Court Decision 2005Da4734 Delivered on February 28, 2008 (Gong2008Sang, 573)

Plaintiff (Attorney Go-won et al., Counsel for the plaintiff-appellant)

Republic of Korea (Attorney Lee Dong-young, Counsel for defendant)

Seoul High Court Decision 2006Na56925 decided Dec. 1, 2006

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. If the content of official duties imposed on a public official is not merely for the public interest or for the purpose of regulating the internal order of an administrative agency, but entirely or incidentally for the purpose of protecting the safety and interest of an individual from society members, the State shall be liable to compensate for the damage suffered by the victim due to the public official’s breach of such official duties to the extent that proximate causal relation is acknowledged. In determining the existence of proximate causal relation, the State shall comprehensively take into account the probability of the occurrence of a result, the purpose of Acts and subordinate statutes and other rules of conduct imposing official duties, the circumstances after the act foreseeable from the purpose or function of the official duties, the attitude of the harmful act, and the degree of damage (see, e.g., Supreme Court Decisions 98Da2631, Sep. 22, 1998; 2005Da62747, Dec. 27, 2007).

Article 15(2) of the former Postal Service Act (amended by Act No. 7446 of Mar. 31, 2005; hereinafter the same shall apply) and Article 25(1)6 of the former Postal Service Act (amended by Ordinance of the Ministry of Information and Communication No. 64 of Jan. 21, 199; hereinafter the same shall apply) apply to "special delivery" as provided for in Article 62 and Article 63 of the above Enforcement Rule are those prepared to implement the delivery under the same Act. If a mailman determined by the delivery agency pursuant to Article 176 of the Civil Procedure Act provides that the delivery of a specific document may be carried out by delivering the document to the party or any other person in accordance with the legal method and give him/her an opportunity to know the content of the document, and if the delivery is lawfully carried out, it is essential to realize the citizen's right to the delivery procedure, while the party who is engaged in delivery of the document has no choice but to have a legitimate interest in the delivery agency's delivery of the document.

Therefore, in a case where a mailman, while making an unlawful service in violation of the Civil Procedure Act in the course of specially delivering an original copy of the determination of seizure and assignment order, prepared a report on postal service as if he had made a lawful service and formed an appearance as if the seizure and assignment became effective in whole, but actually, in a case where damage was inflicted upon the execution creditor by preventing the execution creditor from receiving the entire claim subject to seizure since the seizure and assignment became effective, it is reasonable to see that there exists a proximate causal relation between the mailman’s breach of his duty and the damage to the execution creditor, and the State is liable to compensate for the damage under the State Compensation Act (see Supreme Court Decision 2005Da4734, Feb. 28, 2008, etc.).

2. According to the reasoning of the judgment of the court of first instance as cited by the court below, the plaintiff was issued a claim attachment and assignment order (hereinafter "the attachment and assignment order of this case") against KRW 100 million out of the contract deposit repayment claims to be received from the non-party 2 corporation as of December 17, 1998, Suwon District Court 98, 2047, 20448, and the non-party 3, who is an employee of the non-party 2, as of December 21, 1998, did not receive the original copy of the decision of this case to deliver the original copy of the decision of this case to the non-party 2, who is a third party debtor, on the ground that the non-party 4, who was an employee of the non-party 2, who was in charge of the head of the guard at the new construction site of the non-party 3 corporation, on the ground that the original copy of the decision of this case was not recorded as the original copy of the attachment and assignment order of this case.

Under the above facts, the court below held that, while delivering the original copy of the decision of this case to the non-party 2 corporation, the third debtor, the non-party 3, the mailman, the non-party 4, who is an employee of the non-party 2 corporation, without confirming whether the non-party 4 could be a legitimate receiving agent of the non-party 2 corporation, was negligent in the course of performing duties violating the Civil Procedure Act, etc. In preparing the service report as the non-party 4, who is merely an employee of the non-party 4 of the non-party 4, a legitimate receiving agent of the non-party 2 corporation. If the non-party 3 of the mailman's office legitimately delivered the original copy of the decision of this case, all other conditions that may have the effect of seizure and whole, are satisfied, in light of the above legal principles, it shall be reasonable to view that there is a proximate causal relation between the negligence in the course of performing duties that the non-party 3 of the mailman's office delivered the original copy of this case illegally and the damage suffered by the plaintiff caused the plaintiff

Nevertheless, the lower court rejected the Plaintiff’s claim for damages on the ground that it is difficult to recognize a proximate causal relation with Nonparty 3’s occupational negligence as long as Nonparty 3, as long as the mailman Nonparty 3 was unable to know the contents of the said postal item due to special circumstances, while recognizing the Plaintiff’s negligence in the above duties. In so doing, the lower court erred by misapprehending the legal doctrine on proximate causal relation in damages, thereby adversely affecting the conclusion of the judgment.

The ground of appeal pointing this out is with merit.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Chang-soo (Presiding Justice)