In a case where Eul, an employee of Gap corporation engaged in wholesale and retail business, such as pipes and steel materials, embezzled pipes materials for Gap corporation's sunset and sold them at a price lower than the market price to Byung corporation's representative, the case holding that Eul et al. and Byung were jointly liable to pay damages to Eul corporation for losses.

In a case where Eul, an employee of Gap corporation engaging in wholesale and retail business, such as pipes and steel materials, embezzled pipes materials of Eul corporation and sold them at a price lower than the market price to Byung corporation's representative, the case holding that Eul was liable to compensate for damages to Eul corporation due to negligence in the course of performing its duty of care, on the ground that Eul used pipes materials of Eul corporation's company Gap's company Gap's company's company's company Gap's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company

Articles 396, 750, 760, and 763 of the Civil Act; Articles 210 and 389(3) of the Commercial Act

Comprehensive pipelines of the Corporation (Attorney Han-soo et al., Counsel for defendant-appellant)

Defendant 1 and two others (Attorney Lee Dong-hoon, Counsel for the defendant-appellant)

March 9, 2018

1. Defendant 1 paid to the Plaintiff 128,522,912; Defendant 2 jointly with Defendant 1, whichever is 102,818,329 won out of the above amount; Defendant 1 and Defendant 2, jointly with Defendant 1 and Defendant 2, 73,212,529 won out of the above amount; and 5% per annum from July 1, 2015 to March 23, 2018; and 15% per annum from the following day to the day of full payment.

2. The plaintiff's remaining claims against the defendants are dismissed.

3. Of the costs of lawsuit, 10% of the costs incurred between the Plaintiff and Defendant 1 are to be borne by the Plaintiff, and 90% of the remainder is to be borne by Defendant 1, respectively. 30% of the costs incurred between the Plaintiff, Defendant 2, and Defendant Jayke are to be borne by the Plaintiff, and the remainder of 70% is to be borne by the Plaintiff, Defendant 2

4. Paragraph 1 can be provisionally executed.

Defendant 1 and Defendant 2 jointly pay 141,375,203 won, and 100,667,228 won out of the above amount with Defendant 1 and Defendant 2, and 5% interest per annum from July 1, 2015 to the delivery date of the application for modification of the purport of the claim and the cause of the claim in this case, and 15% per annum from the following to the date of full payment.

1. Facts of recognition;

A. The Plaintiff is a company that engages in wholesale and retail business, such as pipes and steel materials, and Defendant 1 works as the Plaintiff’s employee from April 2004 to July 15, 2015 and was in charge of the management, supply, accounting, etc. of piping materials. Defendant 2 is a personal business operator who performs the duties of manufacturing and installing industrial machinery, painting equipment, steel structure, etc., and the representative of Defendant Jaynam Co., Ltd. (hereinafter “Defendant Jak”)

B. Defendant 1 proposed that the president of the business partners including Defendant 2 trade piping materials, such as valves, lectures, and steel plates, at a price lower than the market price. Defendant 2 consented thereto and Defendant 1 sold the piping materials owned by the Plaintiff (hereinafter “instant materials”) to Defendant 2 at a price lower than the market price.

C. Defendant 1 was sentenced to two years of imprisonment with prison labor for the following facts: “The purchase cost of the materials sold by Defendant 1 was KRW 128,522,912 (the purchase cost based on the tax invoice price issued under Defendant 1’s name is KRW 91,515,62,00)” to Defendant 2; however, Defendant 1 was sentenced to imprisonment with prison labor for the appellate court, and was sentenced to imprisonment with prison labor for one year and nine months: (a) the purchase cost of the materials sold by Defendant 1 was 128,52,912 (the purchase cost based on the tax invoice price issued under Defendant 1’s name is KRW 91,515,62).

D. In addition, Defendant 2 was found to have committed a crime that “Defendant 1 acquired stolen goods by negligence in the course of business by purchasing the instant materials from Defendant 1, with the intention of selling them at a price lower than the purchase cost, by neglecting his duty of care as to whether they are stolen or not.”

[Reasons for Recognition] Unsatisfy, Gap evidence 1 to 3, Eul evidence 1 to 4, the purport of the whole pleadings

2. Determination

(a) Occurrence of liability for damages;

According to the facts found above, Defendant 1 used the instant materials owned by the Plaintiff, which were kept in the course of business, at will after the Plaintiff’s malking, and Defendant 2, despite being able to verify whether the instant materials sold by Defendant 1 were stolen, incurred damages equivalent to KRW 128,522,912, by negligence negligent in performing such duty of care to the Plaintiff. Therefore, the said Defendants are jointly liable to pay the Plaintiff damages amounting to KRW 128,522,912 and delay damages.

In addition, Defendant Jindo, the representative of Defendant Jindo, caused damages equivalent to KRW 91,515,662 to the Plaintiff due to Defendant 2’s unlawful act as above, and thus, Defendant Jindo, jointly with Defendant 2, is obligated to pay the said amount and damages for delay to the Plaintiff.

However, the Plaintiff asserts that the value-added tax should also be paid in consideration of the Plaintiff’s amount of damages, given that the Plaintiff did not apply to the purchase cost of the instant materials in calculating the value-added tax, KRW 12,852,291 ( KRW 128,52,912); and KRW 91,515,662 won for the Defendant Jackyc, and KRW 9,151,566,00 for the Defendant Jac, as the Plaintiff’s amount of damages. However, even if the Plaintiff purchased the instant materials by including the value-added tax, the said value-added tax was deducted from the output tax amount to the extent of the relevant tax amount; thus, the Plaintiff’s claim for this part

B. Limitation on the liability of Defendant 2 and JaC

1) It is not permissible for a person who intentionally committed a tort by taking advantage of the victim’s negligence to assert to reduce his/her liability on the ground of the victim’s negligence. However, this is because allowing a person who has such a ground to claim for offsetting negligence to a person is contrary to the principle of good faith. As such, even if some of the tortfeasors have such ground, a offsetting negligence may be set off against the tortfeasor by taking into account the victim’s negligence (see Supreme Court Decision 2015Da242429, Feb. 13, 2018).

2) Unlike Defendant 1 who intentionally deducted the Plaintiff’s material, Defendant 2 and Defendant 1 committed a tort against the Plaintiff by negligence due to Defendant 1’s negligence in performing his/her duty of care to determine whether the goods intended to be sold are stolen. Therefore, the Plaintiff’s negligence can be asserted in accordance with the foregoing legal doctrine. Therefore, even if Defendant 1 embezzled the Plaintiff’s material for the longer period of three years, the Plaintiff did not discover it even though he/she embezzled the materials for that period, and if the Plaintiff failed to thoroughly manage inventory, etc., the Plaintiff could have discovered criminal facts prior to the earlier and prevented the expansion of damage, but failed to exercise due diligence. Accordingly, taking account of such negligence by the Plaintiff, Defendant 2 and Defendant 1’s liability is limited to 80% of the Plaintiff’s liability.

3) Accordingly, the amount of damages to be paid by Defendant 2 and Jatech to the Plaintiff is KRW 102,818,329 in the case of Defendant 2 (128,522,912 x 80%) and KRW 73,212,529 in the case of Defendant Jatech (91,515,662 x 80%).

C. Sub-committee

Therefore, Defendant 1 is jointly and severally liable to pay to the Plaintiff KRW 102,818,329 out of the above amount, and Defendant Jinac, jointly and jointly with Defendant 1 and Defendant 2, KRW 73,212,529 out of the above amount, and as requested by the Plaintiff, there is a considerable dispute over the existence and scope of the Defendants’ obligations from July 1, 2015 until March 23, 2018, which is the date the said judgment is rendered, with 5% of the annual interest under the Civil Act and 15% of the annual interest under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, from the following day to the date of full payment.

3. Conclusion

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

Judges, Postal Officials