(영문) 대법원 2007.2.22.선고 2005다17143 판결

Of the judgment below, the part against the Defendant (Counterclaim Plaintiff) 1 and the part against the Plaintiff (Counterclaim Defendant) of the counterclaim claim are reversed, and this part of the case is remanded to the Seoul High Court.

The remaining appeals are dismissed.

The costs of appeal against Defendant 2 are assessed against the Plaintiff (Counterclaim Defendant).

Reasons

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to ground of appeal No. 1 (pointing out a mistake of facts due to violation of the rules of evidence)

According to the records, the court below's testimony, part of the testimony of the non-party 1, the non-party 2's testimony, and the defendant (the non-party 2, the non-party 2, the non-party 5, and the non-party 7's testimony against the non-party 3, the non-party 4, the non-party 6's testimony and the non-party 7's testimony were not believed, and after considering the evidence, ordered the non-party 1 to move the non-party 2, the driver of the non-party 2, the non-party 2, the non-party 3, and the non-party 2, the non-party 2, the non-party 2, the non-party 2, the non-party 3, and the non-party 2, the non-party 2, the non-party 2, the non-party 3, the non-party 2, the non-party 2, the non-party 2, the non-party 2, the plaintiff 1, who did not have his capacity to establish evidence.

Furthermore, the argument in the above ground of appeal can be deemed to include the argument that the plaintiff's negligence ratio admitted by the court below was in violation of the principle of equity because it unfairly excessive ratio of the plaintiff's negligence ratio, but even if the defendant 1's liability is acknowledged as seen in the ground of appeal No. 2, this part of the ground of appeal is merely an employer's liability premised on the negligence ratio of the non-party 2, who is the employee of the defendant's side who already taken into account in determining the negligence ratio, and it cannot be said that the basis for determining the negligence ratio admitted by the court below has changed. In light of the records, as long as the plaintiff's negligence ratio is acknowledged as above, the determination of the

The ground of appeal No. 1 is not acceptable, since it criticizes the selection of evidence, acknowledgement of facts, and determination of comparative negligence, which belong to the exclusive jurisdiction of the court below.

2. As to the ground of appeal No. 2 (Claim of misunderstanding of the legal principles as to employer liability), a lessor’s mid-term owner was temporarily leased with the driver and used at the construction site.

In the absence of special circumstances, the status of a lessor as an employer against a lessor who is a mid-term owner is maintained, and his status as an employer may be established overlapping with a lessee or a sub-lessee (see Supreme Court Decisions 94Da3872 delivered on April 7, 1995; 91Da39849 delivered on March 31, 1992, etc.).

Examining the facts established by the court below and the records based on the evidence adopted by the court below, Defendant 1 himself is also a driver who is his employee in the preparatory document on April 15, 2003, Nonparty 2 is basically receiving a fixed monthly wage from Defendant 1 only at the site of Defendant 2 and the Plaintiff’s additional accommodation expenses and allowances. The lease contract between the Defendants and the sub-lease contract between Defendant 2 and the Plaintiff are merely a temporary contract using the instant lifts for a short period of 2 months. Defendant 1 had access to the Plaintiff’s site and knew of the fact that Nonparty 2 had access to the Plaintiff’s site and did not take any measures thereafter, and thus, it can be seen that Nonparty 2 implicitly accepted or consented to the assembly installation work under the direction of the Plaintiff, the lessee, and Nonparty 2 had the right to direct and supervise the construction work of this case. Thus, even if Nonparty 2’s employer did not have the right to participate in the construction work of this case.

In light of the following: (a) the liability clause of the sub-lease contract between the Plaintiff and Defendant 2 and the contents of the oral agreement in the lease agreement between Defendant 1 and Defendant 2; (b) the husband of Defendant 2 and Nonparty 2, upon request of the Plaintiff, led Nonparty 2 to participate in the work; (c) Defendant 1 was late informed of Nonparty 2’s participation; and (d) Defendant 1 was working on the part of the Plaintiff; and (e) Nonparty 3 was aware of Nonparty 2’s previous employer, and Nonparty 3 was aware of Nonparty 2’s experience in the construction of the re-lease; and (h) Defendant 1’s status as an employer against Nonparty 2 is similar to the status of the principal contractor in the contract, and thus, it is difficult to deem that the status as the employer was maintained by extending the construction and assembly of the instant re-contractor.

Although the court below explained that there was a circumstance cited by the court below, the existing employment relationship between defendant 1 and the non-party 2 cannot be deemed to have been severed. Since the theory on whether the employment relationship between the contractor and the non-party 2 is recognized is applied in a contract relationship different from that of the employment contract, it is not appropriate to determine whether the employment relationship exists by applying such theory in this case where the employment relationship is still maintained between the two parties.

Therefore, the decision of the court below that rejected Defendant 1's establishment of employer's liability against Nonparty 2 is erroneous in the misapprehension of legal principles as to employer's liability, and the ground of appeal No. 2 pointing this out is with merit.

3. The ground of appeal No. 3 (In full view of the incomplete deliberation as to the counterclaim claim, and the misapprehension of the legal principle as to the existence of liability for damages on the premise that Defendant 1's counterclaim claim against the Plaintiff is not negligent. The plaintiff's negligence is merely the same as that of the ground of appeal No. 1 and cannot be accepted. The plaintiff's fault in the sub-lease of this case where the lessor consented as it constitutes a breach of the duty to use and benefit from the object under the sub-lease contract, which constitutes a breach of duty under Article 630 (1) of the Civil Code, and therefore the plaintiff, the sub-lessee, bears the duty to the defendant 1, the lessor, and therefore,

However, as seen in the ground of appeal No. 2, as seen in the ground of appeal, Defendant 1 also recognized the employer's liability against Nonparty 2, and the negligence of Nonparty 2 on the occurrence of the instant accident should be considered as the negligence of Defendant 1. Thus, in accepting Defendant 1's counterclaim claim against the Plaintiff, the lower court's measure that did not apply comparative negligence due to Defendant 1's failure to deliberate and decide on the negligence of Defendant 1 was erroneous in the misapprehension of legal principles as to comparative negligence, and the allegation in the ground of appeal assigning this error is with merit.

Therefore, without further examining the remainder of the grounds of appeal No. 3, the part against the Plaintiff regarding the counterclaim among the judgment below cannot be reversed.

4. Conclusion

Therefore, among the judgment of the court below, the part against Defendant 1 and the part against the plaintiff of the counterclaim are reversed, and this part of the case is remanded to the court below for further proceedings consistent with this Opinion. The remaining grounds of appeal are dismissed. The costs of appeal against the defendant 2 are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.