[1] Whether it is permissible for another illegal person, not a person who intentionally committed a tort by using the victim's care, to make a claim for offsetting negligence on the ground of the victim's care (affirmative)

[2] The case where limitation of liability based on the principle of comparative negligence or the principle of fairness is allowed in tort caused by an intentional act by taking advantage of the victim's care

[3] The meaning of "date when the person becomes aware of the damage and the perpetrator" under Article 766 (1) of the Civil Code and the criteria for its determination

[1] Articles 396, 750, and 763 of the Civil Act / [2] Articles 393, 750, and 763 of the Civil Act / [3] Article 766 (1) of the Civil Act

[1] Supreme Court Decision 2007Da7768 Decided June 28, 2007 / [2] Supreme Court Decision 2006Da16758, October 25, 2007 (Gong2007Ha, 1806) / [3] Supreme Court Decision 2000Da22249 Decided June 28, 2002 (Gong2002Ha, 1775 Decided January 24, 2003, Supreme Court Decision 2002Da61675 Decided May 27, 2010 (Gong2010Ha, 1401)

Plaintiff

Defendant (former Name: Lee Young-jin, Attorney Park Young-jin, Counsel for the defendant-appellant)

Suwon District Court Decision 2009Na9554 decided May 28, 2010

All appeals are dismissed. The costs of appeal are assessed against each party.

Each ground of appeal is examined.

1. The plaintiff's ground of appeal and the defendant's ground of appeal No. 1

It is not permissible for a person who intentionally committed a tort by taking advantage of the victim's care to claim a reduction of his/her responsibility on the ground of the victim's negligence. However, it is because allowing a person who has such reason to claim a offsetting of negligence against the principle of good faith. As such, it does not mean that some of the tortfeasors cannot make a claim for offsetting of negligence even another tortfeasor who has no such reason (see Supreme Court Decision 2007Da7768, Jun. 28, 2007, etc.).

In addition, it is not allowed for a person who intentionally committed a tort by taking advantage of the victim's care to claim a reduction of his/her responsibility on the ground of the victim's negligence. The reason is that if such intentional tort constitutes an acquisition act, the limitation of liability, such as offsetting negligence, would result in a result contrary to the principles of equity or good faith by having the perpetrator finally possess profits arising from the tort. Thus, even in cases of intentional tort, if the above result is not caused, limitation of liability based on the principle of comparative negligence or the principle of equity should be always possible (see, e.g., Supreme Court Decision 2006Da16758, 1675, Oct. 25, 2007).

On the other hand, the fact-finding or the ratio of comparative negligence in a claim for damages caused by tort belongs to the exclusive authority of the fact-finding court unless it is deemed considerably unreasonable in light of the principle of equity (see Supreme Court Decision 2005Da34377, Jan. 26, 2007, etc.).

Based on its adopted evidence, the court below found that the co-defendant 2 of the first instance trial operated the Internet site called Bemnet 1, and it was difficult for the plaintiff to request the above Bemnet advertising in the Korean Film Film Film Station located in Yangyang-si around July 2002, since there was no awareness between the general public, there was no intention or ability to advertise to raise awareness, and even though he did not have affiliated with Filisung Group, he was affiliated with Filisung Group, and was planned to make the Bemnet Co-Defendant 2's money as a high-level portal site by advertising in the future, and thus, it should be viewed that the defendant would have been negligent in paying the money within two months if he/she subscribed to the business operator managing a certain area, and that he/she received 30 million won between the plaintiff and the second instance trial from August 15, 202 to September 5, 202, and that he/she would have been aware of the risk of causing damage to the plaintiff's co-defendant 2's above fraud.

In light of the above legal principles and records, the judgment of the court below is just and there is no violation of the rules of evidence, incomplete deliberation, or misapprehension of legal principles as otherwise alleged in the grounds of appeal.

The judgment of the court below seems to recognize the defendant's liability for aiding and abetting the defendant's intentional tort by the co-defendant 2 of the court of first instance. On a different premise, the defendant's ground of appeal on this part is without merit.

2. As to the defendant's second ground for appeal

Article 766(1) of the Civil Act, which is the starting date of the short-term extinctive prescription of a claim for damages due to a tort, "date on which the injured party becomes aware of the damage and of the identity of the perpetrator" means the time when the injured party has actually and specifically recognized the facts requiring the tort, such as the occurrence of the damage, the existence of the illegal harmful act, and the proximate causal relation between the harmful act and the occurrence of the damage. Whether the injured party, etc. is deemed to have actually and specifically recognized the facts requiring the tort should be reasonably acknowledged in consideration of various objective circumstances in each individual case and circumstances practically enabling the claim for damages (see Supreme Court Decision 2002Da61675, Jan. 24, 2003, etc.)

In the same purport, the court below is just in holding that, as long as the act of deceitation by Co-Defendant 2 of the court of first instance is not recognized, the plaintiff is under special circumstances where it is difficult to seek damages from a tort against the defendant, since the relevant criminal judgment became final and conclusive on April 14, 2006, the plaintiff's short-term extinctive prescription of the plaintiff's right to claim damages against the defendant should run from that time when the damage, etc. is actually and specifically recognized, and there is no violation of law such as

3. Conclusion

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

Justices Lee In-bok (Presiding Justice)