2017Da211924 Claims

The National Freight Trucking Federation

Daeyang T&S Co., Ltd.

Busan High Court Decision 2016Na51064 Decided January 25, 2017

June 29, 2017

The part of the judgment below against the defendant is reversed, and that part of the case is remanded to Busan High Court.

The grounds of appeal are examined.

1. Illegal acts stipulated in Article 750 of the Civil Act can be deemed as acts of omission, as well as acts committed by a person obligated to act without taking all necessary measures to prevent it. However, since the duty of act is not included in mere moral or religious duty, as long as the duty of act is not a legal duty, it does not necessarily lead to the law, legal act, or preceding act, and the law is not a legal one. As such, the legal duty of act is not limited to cases arising out of statutes, legal act, or preceding act, or in cases where the duty of act is anticipated under the principle of good faith or social rule or sound reasoning. However, the duty of act under the principle of good faith or social rule or sound reasoning is not a legal duty of act to protect the legal interests of the other party and to prevent infringement thereof, or to control and control risk factors that may cause harm to the other party or to the other party, and to establish and prove the legal status of the other party’s legal interest as an element to prevent harm or harm to the other party’s legal interest (see Supreme Court Decision 2016Da30609, supra.

2. The reasoning of the lower judgment and the evidence duly admitted reveal the following.

A. The Plaintiff is a mutual aid business entity that has entered into a mutual aid agreement for cargo liability with respect to B Trucks owned by A (hereinafter referred to as “A”) and B Trucks owned by A (hereinafter referred to as “instant truck”). The Defendant is a company that engages in cargo transport business, motor vehicle transport brokerage business, etc., with the content that the Plaintiff is liable for damage caused by damage to the cargo due to an accident during cargo transport.

B. The Doowma Co., Ltd. (hereinafter referred to as the 'Chamba') entrusted the transportation of the machinery owned by the Dowmbeber (hereinafter referred to as the 'Dowmbee') from the Dowmber, and re-entrusted the transportation of the instant machinery to C (hereinafter referred to as the 'C'). The Defendant re-entrusted the transportation of the instant machinery to C (hereinafter referred to as the 'C'), and the actual transportation was performed by A.

D. On February 12, 2013, in the instant cargo vehicle D, which was operated by the instant cargo vehicle on the 14:10 on February 12, 2013, and was driven by the container containing the instant machinery, pursuant to the left-hand walkh from the flow distance adjacent to the Roter Information Port Center, which is located inside the Busan Coast Guard at the time of Jinhae Sea, the instant vehicle loaded was destroyed by the string of the container, and accordingly, the accident occurred (hereinafter referred to as “the instant accident”).

E. After having paid USD 500,000 to the Doowe as compensation for the instant accident, the Plaintiff, who entered into a mutual aid agreement with A, filed a claim for mutual aid payment with the Plaintiff. On October 22, 2014, the Plaintiff agreed to KRW 500,000,000, which is the maximum amount of mutual aid payment, as compensation for damages, and paid KRW 500,000,000,000, to the Gadea on November 7, 2014.

F. Meanwhile, the Defendant agreed that C shall not act on behalf of a third party without prior approval of the Defendant in a cargo transport contract entered into with C, and that C shall bear the liability for damages incurred by the third party's act of transportation under the prior approval of the Defendant.

G. The article D stated to the effect that, at the time of request for transportation, the instant machine was a shipbuilding machine and the weight was 16.2 tons, and the volume was 447 x 322X 320 m (c) at the time of handling the instant accident after the instant accident, it was stated to the effect that “I did not separately notify of the directions for handling.”

H. However, the Defendant submitted to C a package statement stating the type, size, weight, price, etc. of the goods to be transported and a cargo tallyked statement to C by facsimile. The Defendant submitted evidence corresponding to C to the purport that C was notified of the number of the vehicle to transport the instant machinery, the name of the driver, etc., and C also issued a confirmation document to the effect that C also accepted it (Evidence 5, 8, and 10).

3. Examining the above facts in light of the legal principles as seen earlier, it is determined as follows.

A. We examine the violation of the duty of disclosure of price, etc. As to the instant machine’s weight of 16.2 tons, volume volume of 447 x 322 X320 mm) and volume of 1.00 billion won, even if the instant machine is high, there is no circumstance to deem that there was material fact in the course of transport separately required due to weight, weight, and value other than the type of the article. The instant accident occurred due to the failure of the string of the string of the container and the cargo which had been kept in custody. Thus, in this case, it cannot be deemed that the instant accident was caused by the Defendant’s breach of duty of disclosure as to the Defendant’s price.

B. Next, as to the violation of the duty of management and supervision, it is difficult to view that C is an employee under the Defendant’s command and supervision, even if one of the parties to a contract which was entrusted with the carriage of the instant machinery by the Defendant, and as a result, there is room to be an employee under the Defendant’s supervision and supervision in relation to the owner of the instant machinery, barring special circumstances, such as the Defendant being aware of the violation of the contract, impliedly or neglected it, it is difficult to view that C has the duty of care to properly perform the duty of management and supervision. It is difficult to deem otherwise, and there is no other statutory or contractual basis to recognize such duty of care, and there is no such duty of care in good faith or sound reasoning. In addition, the circumstances asserted by the Plaintiff, such as the Plaintiff’s failure to receive the transportation fee of the instant machinery from C cannot be the grounds for recognizing the Defendant’s negligence.

D. If so, the Defendant cannot be deemed to have breached any duty of care in the instant accident, and even if there is room to deem a partial breach of duty of care, this does not recognize the occurrence of damage and causation. Therefore, it cannot be deemed that the Defendant is liable to compensate for damages caused by tort against the Dolle, the owner of the instant accident.

4. Nevertheless, the lower court, based on its stated reasoning, determined that the Defendant is liable for damages caused by tort against the owner, based on the circumstances. In so doing, the lower court erred by misapprehending the legal doctrine on the requirements for establishing tort and the burden of proof of negligence, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal on this point is with merit.

5. Therefore, without examining the remaining grounds of appeal, the part against the defendant among the judgment below is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-deok

Justices Kim Jae-han

Justices Kim In-young

A person shall be appointed.