[1] In a case where a victim's bad faith or gross negligence is recognized as a tort committed by an employee, whether an employer's liability is recognized (negative)

[2] The meaning of "victim's gross negligence," which is an exemption from employer's liability,

[3] The case rejecting a hospital's employer-liability exemption claim on the ground that an insurance company's employee in charge of compensation did not know, or did not know, due to gross negligence, that the act of forging a medical certificate such as the hospital's office is not an act of performing the hospital's business, where the insurance company pretends the insurance accident through a false medical certificate in collusion with the hospital's office manager,

[4] Requirements for defamation against a corporation to constitute a tort

[5] The case holding that where an employee in charge of compensation of an insurance company disguises the insurance accident and defrauds the insurance proceeds by using a false diagnosis certificate in collusion with the head of the hospital office, etc., the fact that the insurance company's damage is known to the general public as a press report cannot be deemed as a violation

[1] Even in cases where an employee's illegal act appears to fall within the scope of an employer's external execution of business affairs, where the victim himself/herself knew, or was unaware of due to gross negligence, that the employee's act does not fall within the scope of an employer's or supervisor's execution of business affairs, the employer's liability may not be imposed on the employee, instead of

[2] The term "major negligence of a victim who is exempted from employer's liability" refers to a situation in which it is deemed reasonable to view that there is no need to protect the victim from the perspective of fairness as being in violation of the duty of care required by the general public by believing that the act of an employee was committed lawfully within his/her authority, even though he/she could have known that it was not lawfully performed within his/her authority if he/she had exercised due care.

[3] The case holding that in case where an employee of an insurance company who is merely a mere employee who has been engaged in the compensation business with the approval of its superior except for the accidents of small amount of insurance money paid, uses a false diagnosis letter with the director of the hospital office, etc., and obtains insurance money, the insurance company's employee cannot be deemed to have been aware of such circumstances immediately on the ground that the act of forging a medical certificate such as the director of the hospital office, etc. was aware of the fact that the act of forging the medical certificate does not constitute the act of performing the business, and the fraud cannot be easily discovered through the insurance company's daily business activities by means of the public offering with the staff of the insurance company who can forge the medical certificate and the director of the hospital office, etc. who is well aware of the process of performing the compensation business, by neglecting the duty of guidance and supervision, it cannot be deemed that the insurance company's negligence did not have been too close to the intention, or that there is no need to protect the insurance company from a fair point of view, and therefore, the insurance company's negligence cannot be considered as a gross negligence.

[4] Where a corporation's social reputation and credit has been damaged to the extent that it could affect the corporation's performance of its target business, it constitutes a tort against the corporation.

[5] The case holding that where an employee in charge of compensation of an insurance company pretended the insurance accident and acquired insurance proceeds by means of a false diagnosis certificate in collusion with the director of the hospital office, etc., the fact of such fraudulent damage was known to the general public through the press report, etc., and immediately, it cannot be deemed that the insurance company's social reputation and credit was damaged to the extent that the insurance company's impact on carrying out its target business was likely

[1] Article 756 of the Civil Code/ [2] Article 756 of the Civil Code/ [3] Article 756 of the Civil Code/ [4] Article 751 (1) of the Civil Code/ [5] Article 751 (1) of the Civil Code

[1] [2] Supreme Court Decision 97Da4978 delivered on July 24, 1998 (Gong1998Ha, 2203), Supreme Court Decision 98Da39930 delivered on January 26, 199 (Gong199Sang, 355), Supreme Court Decision 9Da30367 delivered on October 8, 199 (Gong1999Ha, 2303), Supreme Court Decision 83Da217 delivered on June 28, 198 (Gong1983, 1139), Supreme Court Decision 94Da29850 delivered on April 26, 199 (Gong196, 1962), Supreme Court Decision 9Da63979 delivered on March 26, 199 (Gong196, 197Da196979 delivered on July 16, 197)

Dongyang Fire and Marine Insurance Co., Ltd. (Law Firm Han-dong Law Office, Attorneys Yu-hee et al., Counsel for the defendant-appellant)

Defendant 1 and one other (Law Firm Sejong, Attorneys Osung-hwan et al., Counsel for the defendant-appellant)

Seoul High Court Decision 97Na21484 delivered on December 26, 1997

Each appeal by the defendants and the plaintiff's supplementary appeal are dismissed. The costs of appeal and supplementary appeal are assessed against each party.

1. We examine the Defendants’ grounds of appeal.

Even in cases where a tort committed by an employee appears to fall within the scope of external execution of business affairs, if the victim himself/herself knew, or was unable to know, due to gross negligence, that the act committed by the employee does not constitute an act of performing business affairs by the supervisor in lieu of the employer or employer, the victim shall not be held liable for the employer's liability against the supervisor in lieu of the employer or employer (see, e.g., Supreme Court Decisions 94Da29850, Apr. 26, 1996; 83Meu217, Jun. 28, 1983).

According to the facts duly confirmed by the reasoning of the judgment of the court below and the judgment of the court of first instance cited by the court below, it is clear that the above co-defendant 2, etc. of the court below was aware that the above co-defendant 1 of the court below, etc. of the court below, the co-defendant 1, and the non-indicted 2, 3, and 4 of the court below, which are co-defendant 2 of the court below, who is an employee in charge of compensation for the plaintiff's branch of the plaintiff company, and co-defendant 2 of the court below, or co-defendant 2, 3, and 4 of the court below, which is the office manager of the hospital operated by the defendant, or the above co-defendant 1 of the court below, etc.,

However, the above joint defendants 1 et al. of the court below, except for the accidents in which the small amount of insurance money paid as part of the so-called field fund is paid to the plaintiff company's representative, employee, etc., most of the above branch's superior, and they committed the crime of defraudation against the plaintiff company in collusion with others. Thus, although the above joint defendants 1 et al. of the court below knew that the above joint defendants 1 et al. of the court below knew that the act of forging the above written diagnosis by the above joint defendants 2 et al. does not constitute the act of execution of the defendant's business, it cannot

On the other hand, the victim's gross negligence exempted from the employer's liability refers to a situation in which it is deemed reasonable to view that the employee's act was not legitimate within his/her authority, even though he/she could have known of the fact that the employee's act was not within his/her authority, and that it was considerably in breach of the duty of care required by the general public by believing it as an act within his/her authority, and that there is no need to protect the victim from the perspective of fairness (see, e.g., Supreme Court Decisions 98Da39930, Jan. 26, 199; 97Da4978, Jul. 24, 199).

However, examining the facts and records confirmed by the reasoning of the judgment of the court below and the judgment of the court of first instance as cited by the court below, there is a negligence that could not be prevented by early detection of the crime of defraudation of this case over a long period of time, such as co-defendant 1 of the court below, by neglecting the duty to guide and supervise the employees related to compensation, even though the risks of fraud, breach of trust, embezzlement, etc. have increased, and thus, the plaintiff company could not easily be discovered through the daily business activities of the plaintiff company. However, on the other hand, it seems that there was a reason that the crime of defraudation of this case could not be easily discovered through public recruitment by the employees of the plaintiff company and the head of the hospital office, etc. who can forge the written diagnosis that the crime

Considering the above circumstances, the above negligence of the Plaintiff Company cannot be deemed as lacking due care, or that it is not necessary to protect the Plaintiff Company from the perspective of fairness. Therefore, the above negligence of the Plaintiff Company is sufficient to take into account the comparative negligence, and it is not enough to exempt the Defendants from the Defendants’ employer’s liability on the ground that there is gross negligence.

Therefore, the court below is just in its conclusion that the defendants' assertion that the defendants should be exempted due to the plaintiff company's intentional or gross negligence is justified, and it is not erroneous in the misapprehension of legal principles as to employers' liability or in the violation of precedents as pointed out in the judgment of the court below.

2. We examine the Plaintiff’s grounds of incidental appeal.

A. On the first ground for appeal

In a claim for damages caused by a tort, the fact-finding or determination of the ratio of the grounds for comparative negligence falls under the exclusive authority of a fact-finding court unless it is deemed considerably unreasonable in light of the principle of equity (see Supreme Court Decision 95Da24340, Jan. 23, 1996).

In light of the records, the evaluation of the degree of negligence conducted by the court below is appropriate, and there is no error of law in the misapprehension of legal principles as to comparative negligence as pointed out.

B. On the second ground for appeal

In a case where a corporation’s social reputation and credit has been damaged to the extent that it may affect the corporation’s performance of its purpose business and thus the corporation’s social evaluation has been infringed, it shall constitute a tort against the corporation (see, e.g., Supreme Court Decision 96Da12696, Jun. 28, 1996). However, since the facts of the Plaintiff company’s fraud damage in this case were known to the general public through the press report, etc., the Plaintiff company’s social reputation and credit cannot be deemed to have been damaged to the extent that it had an impact on the Plaintiff company’s performance of its purpose business, and thus, the lower court’s rejection of the Plaintiff

3. Therefore, each appeal by the Defendants and the plaintiff's incidental appeal are dismissed, and the costs of appeal and the incidental appeal are assessed against each party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Song Jin-hun (Presiding Justice)