[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 case holding that a bank's employer liability is recognized on the ground that the tort committed by the head of a bank branch, which appears to be within the scope of external execution of administrative affairs, is not acknowledged as a

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

[2] The case affirming the judgment of the court below which recognized the employer liability of the bank on the ground that the bank head's act does not constitute the act of performing the affairs of the bank, since the bank head's act did not know or did not know by gross negligence that the victim knew or did not know by gross negligence that the bank head's act does not constitute the act of performing the affairs of the bank, and the bank head's act did not know that the victim knew or did not know by gross negligence that the bank head's act did not constitute the act of performing the affairs of the bank.

[1] Article 756 of the Civil Code / [2] Article 756 of the Civil Code

[1] [2] Supreme Court Decision 94Da29850 delivered on April 26, 1996 (Gong1996Sang, 1662) / [1] Supreme Court Decision 83Meu217 delivered on June 28, 1983 (Gong1983, 1139) Supreme Court Decision 92Da10531 delivered on July 28, 1992 (Gong192, 2640)

Kim Water (Attorney Ho-soo, Counsel for defendant-appellant)

Korean Commercial Bank (Attorney Lee Jae-soo et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 94Na32254 delivered on March 28, 1995

The appeal is dismissed. The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

1. Summary of the reasoning of the judgment below

A. The court below found the following facts based on the macro-regular evidence.

Around 1975, the Plaintiff was aware of Nonparty 1 who was an employee of the Defendant Bank (the first branch office) and had 00 won deposited in the Defendant Bank until 1980. The Plaintiff had been entrusted with the management of the passbook and received only a certificate of custody thereafter. Nonparty 1 provided the Plaintiff with interest on a fixed deposit amount of 00 won and maintained transaction by providing 00 won for various kinds of financial services. Interest on 00 won was regularly deposited in the Plaintiff’s passbook. Nonparty 1 solicited the Plaintiff to make a deposit with 0% higher than that of the bank’s public interest rate of 00 won on a monthly basis than 00 won. This part of the Plaintiff’s financial transaction cannot be said to have been carried out to have been carried out by 00 won more than that of the bank’s public interest rate of 00 won on a monthly basis, and that it had been carried out by 100 won more than that of the Plaintiff’s bank’s public interest rate of 10 won.

B. Based on these facts, the court below determined that the plaintiff delivered large amount of money to the non-party 1 without any special doubt on the basis of the status as the head of the defendant bank branch office of the non-party 1 and trust that continued transactions for a long time, and on the contrary, the non-party 1 had an opportunity to do so and did not receive the money in the name of deposit from the plaintiff and make it a normal deposit, and it should be deemed that the transaction between the plaintiff and the non-party 1 is merely a private lending relationship. Accordingly, the non-party 1 cannot be viewed as a private lending relationship. Thus, the court below held that the non-party 1's act cannot be viewed as a normal occupational act, but it is an act within the business scope of the defendant bank's business, which is within the scope of the non-party 1's business, and thus, the defendant bank is liable for damages suffered by the plaintiff due to his tort as the non-party 1's employer.

2. In light of the records, the fact-finding and judgment of the court below are just, and there is no error of law by misunderstanding facts against the rules of evidence or by misapprehending the legal principles as to employers' liability, as otherwise alleged in the grounds of appeal.

3. Even in cases where an employee's illegal act appears to fall under the scope of business execution, if the victim himself/herself knew or was negligent in gross negligence that his/her act does not fall under the act of supervising the business affairs on behalf of the employer or the employer, the employer's liability may not be imposed on the supervisor of the business affairs on behalf of the employer or the employer. However, as acknowledged by the court below, the plaintiff disposed of his/her husband's miscarriage in around 1972, when he/she was under 47 years of age, and without any other occupation, he/she included his/her husband's miscarriage in the bank, and received interest, and made a transaction with the above non-party 1 through the above non-party 1. The plaintiff's interest on the money distributed by the plaintiff was deposited with the plaintiff's passbook on a regular basis, and as in this case, the Act inducing the financial transactions between the financial institutions to deposit on condition that the interest higher than the public interest rate of the bank should be guaranteed. Thus, it cannot be viewed that the non-party 1's act was unlawful as the plaintiff's grounds for appeal.

4. Ultimately, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Jae-soo (Presiding Justice)