[1] Where an advertisement can be seen as an offer, and where an advertisement is merely an inducement of an offer, if the other party makes an offer on the premise of the content of the advertisement in the subsequent transaction process and the advertiser approves it, whether the content of the advertisement constitutes the content of the contract (affirmative)

[2] The meaning of a performance assistant under Article 391 of the Civil Code, and whether a third party constitutes a performance assistant in a case where a third party merely performs an act under subparagraph (a) but such act was conducted under the obligor’s acceptance (affirmative)

[3] The case holding that, in a case where Gap purchased a marina ticket operated by Eul farming association corporation through the electronic commerce site, and the above accommodation ticket included a free riding experience, but Gap requested Eul's director Byung to offer a riding experience and allowed Gap to take a riding experience at Eul's company's director Byung, and Gap suffered a bodily injury while riding experience was conducted under Byung's instruction, since Eul's performance assistant Eul was negligent in neglecting Eul's duty of care for safety, Eul corporation was negligent in the above accident pursuant to Article 391 of the Civil Code

[1] In general, an advertisement is limited to the invitation of an offer, but its contents are clear and conclusive, and an advertiser’s intent to detain the content of the advertisement in accordance with the contents of the advertisement is deemed an offer. Furthermore, even if the advertisement is not limited to the invitation of an offer, if the other party makes an offer on the premise of the content of the advertisement in the subsequent transaction process and the advertiser concludes a contract with his/

Furthermore, in the event that a dispute over the interpretation of a contract between the parties becomes an issue of interpretation of the parties’ intent expressed in writing as to the contents of the contract, the contents of the text, the motive and background leading up to the agreement, the purpose to be achieved by the agreement, the parties’ genuine intent, etc. shall

[2] Article 391 of the Civil Act provides that an agent’s intentional or negligent act shall be deemed as an obligor’s intentional or negligent act. Such performance assistant is sufficient if a person engages in an act of performance of an obligation under the obligor’s involvement in the obligor’s intent and does not necessarily have to have a relationship with the obligor’s instructions or supervision. Therefore, whether an agent is subordinate to the obligor or independent from the obligor is irrelevant. Moreover, an agent does not have any legal relationship with the obligor, such as contractual and other legal relations. Even if a third party simply engages in an act under the obligor’s permission, if such act is performed under the obligor’s permission, the third party is deemed as an agent. Whether an agent’s act is temporary

[3] The case holding that in a case where Gap purchased a marina ticket operated by the farming association corporation Eul through the electronic commerce site, and the above accommodation ticket included a free riding experience, but Gap requested Eul's director Byung to provide a horse riding experience and allowed Gap to participate in a horse riding program, and where Gap suffered bodily injury while riding experience was conducted under Byung's guidance, the purchase of accommodation ticket also includes a contract where Eul provided a horse riding program to Gap for accommodation, and it constitutes "the provision of free riding program for one guest" for accommodation, and the horse riding experience offered by Eul corporation to Eul constitutes "the provision of a horse riding program" to Gap, regardless of Eul's request for a horse riding program, it constitutes "the provision of a horse riding program" as well as "the provision of a horse riding program to Gap," and thus, it constitutes "the provision of a horse riding program" to Eul, which constitutes "the provision of a horse riding program" under the Civil Code, which constitutes "the provision of a horse riding program" under the direction and supervision of Gap's physical activity to Gap, regardless of Eul's request for the performance of obligation.

[1] Articles 105 and 527 of the Civil Act / [2] Article 391 of the Civil Act / [3] Articles 105, 391, and 527 of the Civil Act

[1] Supreme Court Decision 2002Da23482 Decided June 28, 2002 (Gong2002Ha, 1816), Supreme Court Decision 2014Da14115 Decided June 26, 2014 (Gong2014Ha, 1463) / [2] Supreme Court Decision 2001Da44338 Decided July 12, 2002 (Gong2002Ha, 1940), Supreme Court Decision 201Da130 Decided May 26, 201 (Gong201Ha, 1293) (Gong201Ha, 1293)

Plaintiff

Horse Tourism Association

Seoul Northern District Court Decision 2016Na37455 decided September 27, 2017

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

The grounds of appeal are examined.

1. As to misapprehension of legal principles as to a contract for the purchase of accommodation tickets (ground of appeal No. 1)

A. In general, an advertisement is limited to the inducement of an offer, but its contents are clear and conclusive, and an advertiser’s intent to detain the content of the advertisement as a content of the advertisement is obviously deemed an offer. Furthermore, even if the advertisement is inappropriate for inducing an offer, if the other party makes an offer on the premise of the content of the advertisement in the subsequent transaction process and the advertiser concludes a contract with his/her consent, the advertisement should be deemed the content

Furthermore, in a case where a dispute over the interpretation of a contract between the parties becomes an issue of interpretation of the parties’ intent expressed in writing as to the contents of the contract, the contents of the language and text, the motive and background leading up to the agreement, the purpose to be achieved by the agreement, the parties’ genuine intent, etc. shall be comprehensively considered, and the reasonable interpretation shall be made in accordance with logical and empirical rules (see Supreme Court Decisions 2002Da23482, Jun. 28, 2002; 2014Da14115, Jun. 26, 2014

B. According to the evidence duly admitted by the lower judgment and the lower judgment, the following facts are revealed.

(1) On November 2014, the Defendant: (a) operated ○○○○○○ (hereinafter “instant resort”); (b) operated the instant resort in a manner that, at the time of operating the “○○○○○”) located in the Chungcheongnam-gun ( Address omitted; and (c) operated the instant resort by lending horses to club members; (d) providing information on the course; or (e) allowing them to use the instant resort at a riding club site for photographing drama. Thereafter, the Defendant met the requirements on January 20, 2015, and reported the instant resort to the competent authorities.

(2) Before reporting a riding facility, the Defendant sold the instant resort accommodation ticket through the “cube”, which is an electronic commerce site, and the indication and advertisement on the product description is as follows.

① The instant resort, unlike other fences, has a variety of programs that can enjoy horse riding. In particular, if the instant resort wants to enjoy travel in the piracy, it is a opportunistic resort.

(2) Conventions: Free provision of riding experience to one of accommodation users.

③ Horse riding experience: A telegraphic sports that leads to sound physical development by ensuring the formation and flexibility of the body, is being prepared for various programs, such as horse riding campaigns, sea-ridings, and riding for forests.

(3) On November 12, 2014, the Plaintiff purchased one accommodation ticket for the instant resort via the Coupick site (hereinafter “instant contract”), and the provision service includes free horse riding experience for one of accommodation users.

(4) On November 13, 2014, the Plaintiff: (a) entered the instant resort to the instant resort; and (b) extended the accommodation period on a daily basis; and (c) around November 15, 2014, around September 9, 2014, the Plaintiff wanted the Defendant’s director Nonparty 1 to engage in horse riding experience.

(5) At the time, Nonparty 1 asked Nonparty 2, the riding instructor of the shooting team, who was residing in the instant resort, to provide guidance for the Plaintiff to take horse riding riding courses.

(6) Nonparty 2 heard from Nonparty 1 that the Plaintiff may run a horse (referring to running a fluor, cant, or horse with a three-thieve method while running a fluor) in the front line of the horse, and he was able to fill a fluoral horse among the horses he saw in the middle of the horse. Nonparty 2 was aground, followed by Nonparty 1’s fluoring the horse at the horse.

(7) Nonparty 2 directed the Plaintiff while coordinating the horse with the loss of laying to rest in the Plaintiff. Nonparty 2 moved to the order of the Plaintiff in a flat (which refers to the parallel of a two thieves, Trot, and horses, moving to a bridge by a 4th theft, and coming to a walk) in a flat (which refers to the parallel of a two thieves, Trot, and horses that move to a stalthical shift to a two bridge).

As the Plaintiff was well fighting up to the speed rhythm of the horse, the Plaintiff’s khythm of the horse, and the horse rhym of the horse rhym of the horse rhym, and the horse rhym of the horse, Nonparty 2 would operate the Gu newsletter, and Nonparty 2 would be entitled to hold a canter. However, the Plaintiff’s kym of the horse hym of the horse hym of the horse hym of the horse hym of the horse (hereinafter “instant accident”).

(8) Due to the instant accident, the Plaintiff suffered injuries, such as the upper pelvis and the upper right pelvis, and received surgery and hospitalization from November 16, 2014 to December 2, 2014.

C. Examining the above facts in light of the legal principles as seen earlier, the Defendant actively sold accommodation tickets while indicating and advertising that the instant resort via the electronic commerce site contains a free horse riding program for one accommodation user, and the Plaintiff also purchased accommodation tickets including the content thereof. Therefore, the instant contract ought to be deemed as the content of a contract to provide the Plaintiff with free horse riding program for one accommodation, as well as the Defendant’s offering of accommodation to the Plaintiff.

Next, the specific contents of the horse riding experience stipulated in the instant agreement are problematic. In light of the Defendant’s prior meaning of horse riding (referring to various actions or games that one gets on or off a horse), and the indication, advertisement of the goods with accommodation tickets and the terms and contents of the instant agreement, etc., the horse riding experience offered by the Defendant to the Plaintiff refers to allowing the Plaintiff to have a horse walk or walk on the horse, and it cannot be deemed that the experience offered by the Defendant is limited to the experience of leaving the horse or leaving the horse on the horse, as alleged by the Defendant.

D. The lower court did not err in its judgment to the same purport by misapprehending the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine regarding the inclusion in advertisements and contracts and the interpretation of contracts.

2. As to the misapprehension of legal principles as to the negligence of performance assistant (ground of appeal Nos. 2 and 3)

A. Article 391 of the Civil Act provides that an agent’s intentional or negligent act shall be deemed as an obligor’s intentional or negligent act. Such performance assistant is sufficient if a person engages in an act of performance of an obligation under the obligor’s involvement in the obligor’s intent and does not necessarily have to be in a relationship under the obligor’s direction or supervision. Therefore, whether he/she is subordinate to, or is independent from, the obligor (see, e.g., Supreme Court Decisions 2001Da44338, Jul. 12, 2002; 2011Da1330, May 26, 201). Moreover, performance assistant is not required to have legal relations with the obligor and contractual and other legal relations. Even in cases where a third party simply engages in an act falling under any subparagraph (a), if that act is performed under the obligor’s permission, such third party is deemed as an agent. Whether an agent’s activity is temporary or continuous is not an issue.

B. According to the evidence duly admitted by the lower judgment and the lower judgment, the following facts are revealed.

(1) At the time of the instant accident, the Defendant did not systematically have internal riding courses, horse-riding facilities, and physical and human facilities and safety equipment to be managed without reporting the horse-riding facilities as prescribed by the relevant statutes.

(2) Nonparty 1, a director of the Defendant, asked Nonparty 2 to allow the Plaintiff to take horse riding riding courses. At the time, Nonparty 2 did not give instructions or attention to prevent safety accidents, such as compliance with safety rules. Nonparty 2 merely confirmed the Plaintiff’s experience in horse riding, but did not provide the Plaintiff with prior safety education.

(3) The Plaintiff appears to have failed to wear basic safety equipment, such as fitnesss and shoess, and Nonparty 2 and Nonparty 1 did not accurately verify whether or not they wear safety equipment.

(4) Although Nonparty 2 sent the Plaintiff with a signal to move in the Gu newsletter and instructed the Plaintiff to take off the knife, it seems that Nonparty 2 did not have sufficient time to confirm the Plaintiff’s physical condition and intent in advance or to prepare for the Gu newsletter.

C. As above, in order to provide the Plaintiff with horse riding experience services included in the instant contract upon the Defendant’s request, Nonparty 2 constitutes a performance assistant under Article 391 of the Civil Act regardless of whether he/she was instructed or supervised by the obligor, or whether he/she was engaged in any activity under any subparagraph.

Since the Defendant agreed to provide free horse riding riding services, separate from the provision of guest rooms in the instant contract, the Defendant is obligated to provide horse and safety equipment (flags and shoes) in compliance with the user’s level, and to provide appropriate safety education and riding guidance at a level. Nonparty 2, an implementing assistant, is negligent in failing to comply with Article 391 of the Civil Act, even if he/she is responsible for the Plaintiff to confirm whether safety equipment is worn in advance, to urge the Plaintiff to pay safety attention, and to verify the Plaintiff’s ability and physical condition, and to instruct horse riding. Thus, the Defendant, the obligor, was negligent in the instant accident pursuant to Article 391 of the Civil Act.

D. The lower court’s determination that the Defendant violated an incidental duty under the good faith principle that the Defendant should consider the safety of the user as the accommodation business operator is unclear regarding the instant accident, but the lower court’s determination that Nonparty 2, an agent, was liable to compensate the Defendant for the Plaintiff’s damages due to nonperformance by deeming the Defendant’s negligence as the Defendant

The lower court did not err by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal doctrine on the negligence of contractual nonperformance or performance assistant, which affected the conclusion of the judgment

3. Conclusion

The Defendant’s appeal is dismissed as it is without merit, 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.

Justices Kim Chang-suk (Presiding Justice)