The case holding that Gap's employer's liability is recognized in case where Eul, who works in the position of "office director" at the law office operated by the attorney-at-law, solicited Eul to invest in the court auction to the client Byung et al., and Byung et al. acquired the money for the purpose of auction proceeds, etc.

In a case where Eul, who works in the position of "office director" in the law office operated by Gap, obtained money from the client Byung, etc. for the purpose of auction proceeds by soliciting them to invest in the court auction, Byung et al., and Byung et al. sought employer liability against Eul, the case holding that Eul's act is within the scope of objective and external work performed by Eul, and it cannot be deemed that Eul et al. had intention or gross negligence on the ground that Eul's act was not legitimate within his/her official authority, since Eul's act is within the scope of objective and external work performed by Eul, and it cannot be deemed that there was an intentional or gross negligence on the ground that Eul's act was not lawfully performed within his/her official authority.

Article 756 of the Civil Act

Plaintiff 1 and one other (Attorney Kim Chang-mo, Counsel for the plaintiff-appellant)

Defendant 1 and one other (Attorney Rental-ho, Counsel for the defendant-appellant)

July 23, 2015

1. Defendant 1 shall pay to Plaintiff 1 25,320,800 won and the interest rate of 20% per annum from June 5, 2014 to the day of full payment.

2. Defendant 2 jointly with Defendant 1, paid 220,00,000 won to Plaintiff 1, and 112,660,400 won to Plaintiff 2, and 5% per annum from February 13, 2014 to August 20, 2015, and 20% per annum from the next day to the date of full payment.

3. The plaintiffs' remaining claims against defendant 2 are dismissed, respectively.

4. Of the costs of lawsuit, the part arising between the plaintiffs and the defendant 1 shall be borne by the defendant 1, and the part arising between the plaintiffs and the defendant 2 shall be borne by the plaintiffs, and the remainder by the defendant 2, respectively.

5. The above paragraphs 1 and 2 can be provisionally executed.

The order of Paragraph (1) and the defendant 2 shall pay to the plaintiff 1 440,00,000 won in collaboration with the defendant 1, 225,320,800 won, and each of them shall be paid with 20% interest per annum from the day following the day of service of the copy of the complaint of this case to the day of complete payment.

1. Facts of recognition;

[Reasons for Recognition]

○ With respect to Defendant 2: Facts without dispute, Gap evidence 1, 2, evidence 3-1, 2, Gap evidence 4, 5, Gap evidence 18, Gap evidence 43-1 through 6, Eul evidence 43-2, and the purport of the whole pleadings, and the purport of the whole pleadings.

○ Defendant 1: Confession (Article 150(3) and (1) of the Civil Procedure Act)

A. Defendant 2 is an attorney-at-law who operates the “legal office of Defendant 2-at-law” in Ulsan-gu ( Address omitted), and Defendant 1 is a staff member who works for the said legal office from November 20, 2012 to November 20, 2013 in the position of “office chief” or “legal working staff”.

B. Around September 2013, the Plaintiffs received the introduction of the said legal office through the Nonparty with respect to Plaintiff 2’s administrative litigation. At the time, Defendant 1 recommended the Plaintiffs to make an investment to the effect that “At the time, Defendant 1 knows many of the good auction goods in progress in the Ulsan District Court, but may obtain profits from resale at a low price.”

C. Accordingly, the Plaintiffs agreed to delegate the auction procedure to the above legal office, and Plaintiff 2 paid 220,000,000 won as the auction price from October 23, 2013 to October 24, 201 of the same year and KRW 225,320,800 as the registration fee on November 8, 201 of the same year (= KRW 220,000 + KRW 5,320,000 as the registration fee + KRW 5,320,80 as the registration fee). Plaintiff 1 paid KRW 40,00,00 as the respective Defendant 1 on November 1, 2013.

D. However, Defendant 1 did not commence an auction procedure with the intent to acquire the above money from the Plaintiffs, and from November 2013, Defendant 1 escaped by saving contact with the Plaintiffs. Meanwhile, Defendant 1 was detained due to the foregoing case, etc. and currently under criminal trial is being conducted by the Ulsan District Court No. 2015Kadan918.

2. Determination as to the claim against Defendant 1

According to the above facts, Defendant 1’s act constitutes intentional tort. As such, Defendant 1 is liable to compensate for damages arising from illegal acts under the Civil Act with respect to the amount equivalent to the auction proceeds acquired by the Plaintiffs. Therefore, Defendant 1 is liable to pay to Plaintiff 2, 225,320,800 won, Plaintiff 1 440,000 won, and damages for delay calculated at the rate of 20% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, from June 5, 2014 to the date of delivery of the copy of the instant complaint to Defendant 1, as requested by the Plaintiff.

3. Determination as to the claim against Defendant 2

A. Summary of the assertion

(1) The plaintiffs

Since Defendant 2 is the employer of Defendant 1 and is liable for the employer under the Civil Act, Defendant 1 is obligated to pay the amount equivalent to the above auction price in collaboration with Defendant 1.

(2) Defendant 2

Defendant 1’s act was unrelated to the scope of his duties, and was not involved by Defendant 2 in the transaction between the Plaintiffs and Defendant 1, and it was merely an individual act of Defendant 1 by not using the official seal of the above Defendant. In addition, there is no fact that the delegation contract was made with Defendant 2, and the auction price was paid to Defendant 1. As such, the Plaintiffs knew that Defendant 1’s act does not constitute an act of performing duties or was imposed by gross negligence, and thus, Defendant 2 is not liable for employer.

B. Determination

(1) Details of employer liability

The phrase "in relation to the performance of an employee's business", which is an element for an employer's liability under Article 756 of the Civil Act, means that if an employee's unlawful act objectively appears to be objectively related to the employee's business activity, performance of an employee's business, or performance of an employee's business, without considering the employee's subjective circumstances. Whether it is objectively related to the performance of an employee's business should be determined by considering the degree of the employee's original duty and tort, and the degree of the employee's occurrence of damage and the degree of the employer's responsibility for failing to take preventive measures (see Supreme Court Decision 2007Da75921, May 14, 2009). Meanwhile, where the employee intentionally committed an harmful act against another person, the act is not itself, but in close to the employee's business time and place, and even if the harmful act was committed in the course of performing all or part of the employee's business, or when the motive for performing the employee's business is related to the employee's business (see Supreme Court Decision 2709Da268,28, Feb. 28, 20096).

In light of the above legal principles, the above evidence and evidence Nos. 4 and 5, and evidence Nos. 10 and 10-7, respectively, are comprehensively considered as follows: ① the law office operated by Defendant 2 provides services related to auction agency; ② Defendant 2 permits Defendant 1 to use the title "office manager" (No. 10-7 and No. 3); ③ Defendant 1 emphasizes that he was the head of the above law office in deceiving the Plaintiffs (No. 43-6 and No. 5 of the above evidence No. 43); ④ The cash custody certificate prepared between the Plaintiffs and Defendant 1 (No. 3-1 and No. 2 of the evidence No. 3-1) contains the names of the above law office and the address of the above law office; ④ Defendant 2’s act of collecting money to Defendant 1’s attorney-at-law who is the legal office’s head of the law office, and thus, Defendant 1’s act of collecting money to Defendant 2 as an auction office’s head of the law office.

(2) Determination on exemption and comparative negligence

A) As to the plaintiffs' intentional or gross negligence

The gross negligence of the victim who is exempted from the employer's liability refers to the situation where it is reasonable to deem that the other party to the transaction would have known that the act of the employee would not have been lawfully done within his authority, even though he could have known that the other party to the transaction would not have been forced to do so within his authority, it has been significantly in breach of the duty of care required by the general public by believing it as an act within his authority, and that there is little lack of care to the extent close to the intention, and that there is no need to protect the other party from the perspective of fairness (see Supreme Court Decision 2009Da9577, Jun. 11, 2009). According to the above evidence, the payment of money to the defendant 1, who is not the employer, is recognized, but there is a lack of sufficient evidence to acknowledge the intention or gross negligence of the plaintiffs. Accordingly, this part of the defendant 2's assertion is rejected.

B. Negligence offsetting

However, in light of the following circumstances, which are acknowledged in full view of the purport of the argument in the above evidence, (i) the plaintiffs believe that the plaintiff can make profits without confirming the real estate subject to auction and delegate all rights related to auction to the defendant 1 only, (ii) the defendant 1's personal account is remitted to, or delivered to, the defendant 1 (the plaintiff 2), and (iii) the plaintiffs are entrusted to the defendant 1 without any specific confirmation even in the course of preparing the cash custody certificate between the defendant 1 and the defendant 1 (the evidence No. 3-1) (in case of the plaintiff 2's cash custody certificate (the evidence No. 3-1), the above plaintiff's signature was deemed to have been made pursuant to the defendant 1 (the signature No. 1, the evidence No. 1), and the ratio of the plaintiff 1's seal and seal No. 3-2) in the name of the plaintiff 1 (the above plaintiff 1's personal account No. 3-2).

(3) Sub-decisions

Defendant 2 is jointly with Defendant 1,220,000 won (=440,00,000 x 50%) 112,660,400 won (=225,320,800 x 50%) to Plaintiff 2, as sought by the Plaintiff, and as to each of the above, Defendant 2 is obligated to pay damages at the rate of 20% per annum under the Civil Act from February 13, 2014 to August 20, 2015, which is the date of delivery of the copy of the complaint of this case against Defendant 2, which is deemed reasonable for Defendant 2 to dispute as to the existence and scope of the obligation.

4. Conclusion

Therefore, the plaintiff's claim against the defendant 1 is justified, and the claim against the defendant 2 is accepted within the scope of the above recognition. The remaining claim against the defendant 2 is dismissed as it is without merit. It is so decided as per Disposition.

Judges Man-sik (Presiding Judge) and Park Jong-Un

(1) In a case where a securities company is liable for employer’s liability against a securities company on the ground that the victim suffered losses equivalent to the amount of investment money remitted to employees of the securities company, the judgment holding that the mere fact that a securities company established an individual fund investment transaction relationship with employees of the securities company without using the securities transaction account does not immediately constitute “the victim himself/herself knew or was unaware of that the act does not constitute an employer’s act of performing his/her duties by gross negligence” (see, e.g., Supreme Court Decision 2007Da75921, May 14, 2009).