207 Gaz. 28335 Compensation (as stated)

Article 00 (Amount of 65 Yearss)

Youngyang-si Solsan-gu

Is 00

Daejeon Seo-gu, Seo-gu 1, 00 used cars

June 13, 2008

June 27, 2008

1. The defendant shall pay to the plaintiff 11, 180, 000 won with 20% interest per annum from June 28, 2008 to the day of full payment.

2. The plaintiff's remaining claims are dismissed.

3. 35% of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

The defendant shall pay to the plaintiff 17,200,000 won with 20% interest per annum from the day after the judgment of this case to the day of full payment.

1. Facts of recognition;

A. The plaintiff was a person who was the owner of Bosch Rexton's car (hereinafter referred to as "car of this case"). The defendant is a person who operated a used car sales company "00" located in Seo-gu Daejeon-dong, Seo-gu, Daejeon, and the co-defendant of this case 00 (hereinafter referred to as "OOO" of October 4, 2007) of this case from October 2004 to "00 as a member of the business."

B. On July 26, 2006, the Plaintiff purchased the instant car in KRW 200,000 from 00 to 4.5 million, and at the time ○○○ was a member in charge of sales.

C. On November 2, 2006, the Plaintiff requested Lee ○ to sell and request the instant car to ○○ around November 2, 2006. On November 13, 2006, Lee ○○ sold the instant car at a price lower than KRW 23 million at the time of the instant car at KRW 20,000,000, and received the payment, and used it as an intention to pay the personal debt of ○○○ after receiving the payment.

D. After doing so, ○○○ paid KRW 2.8 million to the Plaintiff for compensating for the said damages.

[Ground of recognition] The non-contentious facts, entry of Gap 1, 2, and 5 evidence, and the purport of the whole pleadings.

2. Determination

A. The parties’ assertion

(1) The Plaintiff asserts that, as the Defendant is an employer of ○○○○, the Defendant should be liable pursuant to Article 756 of the Civil Act as an employer for the above embezzlement.

(2) As to this, although this, although ○○○ became an employee of the Defendant’s “00” (hereinafter “Defendant Company”) operated by ○○○, the Defendant asserts that, according to the operation practices of the used vehicle dealer, only the Defendant shall pay the Defendant the prescribed management fees and the sales fees, and that the remainder of the vehicle profits are being carried out by himself, the Defendant cannot be regarded as an employee in a relationship of use with the Defendant. Even if ○○ was an employee of the Defendant, the Plaintiff did not prepare a consignment sales contract under the name of the Defendant when entrusting the sale of the instant vehicle to ○○○○, and the sales amount was not deposited into the Defendant Company, in light of the fact that the Plaintiff did not sell the instant vehicle to ○○○○, but did not sell the instant vehicle to ○○○○○, as personally limited to the Defendant Company, and thus, the Defendant cannot be held liable for the Defendant.

B. The defendant's employer's liability

(1) First of all, regardless of whether the user liability requirement under Article 756 of the Civil Act is actually under command and supervision, the determination should be made on the basis of whether the user was in a position to direct and supervise the illegal person. In this case, the fact that the ○○○○ has been registered as a member of the Defendant Company's business is identical to the above recognition, and the fact that the ○○○○○ was trading in the position of the employee of the Defendant Company when he counters the general consumers, and the fact that the ○○○○ paid part of the management fee and the proceeds from the sale of the vehicle to the Defendant as the fee is not disputed between the parties, or that the ○○○○ paid part of the management fee and the proceeds from the sale of the vehicle to the Defendant as the commission can be recognized by taking into account the overall purport of arguments. In light of the above circumstances, it is reasonable to deem that the Defendant was in the position of the employer to direct and supervise the illegal act, taking this into account objective normatively if the ○○○ is the counter-party.

(2) Furthermore, the phrase "business execution", which is an element for employer's liability under Article 756 of the Civil Act, means that an employee's unlawful act is objectively deemed to be an act of performing office work without considering subjective circumstances (see, e.g., Supreme Court Decision 2000Da34426, Jan. 10, 2003). The fact that the Plaintiff was an employee at the time of purchasing the instant car from the Defendant Company on July 26, 2006, that the Plaintiff was an employee in charge of sales and purchase of the instant car, and that it was reasonable for the Plaintiff to view that the sales and purchase of the instant car belongs to the principal business scope of the Defendant Company, and that it was objectively recognized that the Plaintiff was an employee in charge of sales and purchase of the instant car under the name of the Defendant Company's sales and purchase, and that the Plaintiff still worked for the Defendant Company's sales and sale of the instant car under the name of the Defendant Company's 200.

(3) Accordingly, the Defendant, as the user of this case, is liable to compensate the Plaintiff for KRW 20 million, as sought by the Plaintiff, among the damages incurred by the Plaintiff due to embezzlement of each purchase price of the instant passenger car between this○○ and Lee ○○.

C. Restrictions on the scope of liability for damages

Meanwhile, comprehensively taking account of the overall purport of the argument in the foregoing evidence, it is acknowledged that the Plaintiff prepared a consignment sales contract under the name of the Defendant Company at the time of entrusting the sale of the instant car to ○○○○, or did not notify the Defendant Company of the fact that it was entrusted to the Defendant Company. Such mistake by the Plaintiff is deemed to have caused the occurrence and expansion of the instant damage, and thus, it should be considered in calculating the amount of damages against the Defendant.

In light of the above circumstances, it is reasonable to 35% of the total amount of damages when comprehensively considering the above circumstances, and thus, the liability of the Defendant and the Defendant for damages is limited to 65% of the total amount of damages.

(d) Mutual aid:

The fact that ○○○ paid KRW 2.8 million to the Plaintiff as part of the above damage compensation is identical to the above recognition, and in accordance with the ratio of negligence, 1.82 million out of the above repayment amount ( = 2.8 million won x 65%) should be deducted from the Defendant’s damage compensation amount.

E. Sub-committee

Therefore, the defendant has no intention to pay to the plaintiff 1,180,000 won ( = 1,3 million won ( = 20 million won X65%) - 1,820,000 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 the day following the day of this judgment to the day of full payment, as requested by the plaintiff.

3. Conclusion

Thus, the plaintiff's claim is reasonable within the above scope of recognition, and part of the claim is accepted, and the plaintiff's claim is dismissed as it is without merit.

Justices Kim Jong-soo