(영문) 제주지방법원 2015.2.5.선고 2014가합5360 판결

1. The amount calculated by Defendant Do○○○○ by applying each rate of 5% per annum from February 24, 2014 to April 22, 2014, and 20% per annum from the next day to April 22, 2014 to Plaintiff Do○○○○○○○, and 56,75,000 won per annum from the next day to the next day to the day of full payment; Defendant Do○○○○○ and each of the above amounts calculated by paying 46,875,00 won to Plaintiff Do○○○○○; 28,125,000 won per annum from the next day to the next day to the next day to the day of full payment; 37,500 won per annum from the next day to the next day to the next day to 25,000 won per annum from each of the above amounts to Plaintiff Do○○○; and 205% per annum from the next day to 25,25014.

2. The plaintiffs' remaining claims against the defendant Jeju Special Self-Governing Province are dismissed.

3. Of the costs of lawsuit, the part arising between the Plaintiffs and the Defendant Do○○○ is borne by the Defendant Do○○, and 1/2 of the part arising between the Plaintiff Do○ and the Defendant Jeju Special Self-Governing Province is borne by the Plaintiffs, and the remainder is borne by the Plaintiffs,

4. Paragraph 1 can be provisionally executed.

Purport of claim

The Defendants shall pay to each of the plaintiffs 1, 200 won, 56,250,000 won, 37,500,000 won to the plaintiff 1, 200 won, and 20% interest per annum from February 24, 2014 to the date of delivery of a copy of the complaint of this case, and from the next day to the date of full payment.

Reasons

1. Facts of recognition;

A. Defendant Do○○ was appointed as a public official on March 10, 2004 and served as a public official in charge of educational affairs at Defendant Jeju Special Self-Governing Province (hereinafter “Defendant Do”) (hereinafter “Defendant Do”).

B. Defendant Do○○ intended to defraud money under the pretext of facility load business expenses, etc. by forging relevant documents by using the fact that he/she is a public official of Defendant Jeju-do. On February 24, 2014, he/she knew Do Governor that he/she would receive State subsidies in connection with facility load business from the original high-rise on or around February 24, 2014, and was paid KRW 9,3750,000,000,000 from Plaintiff ○○○, and KRW 5,6255,00 from Plaintiff ○○, and KRW 375,50,000,000 from Plaintiff ○○, around February 24, 2014.

C. On April 8, 2014, Defendant ○○○○○ was prosecuted for an offense, such as fraud, etc. by Jeju District Court Decision 2014No371 on April 8, 2014. On September 12, 2014, the above court found Defendant 2 as the victim’s house located in Seopo-si, Seopo-si, Seopo-si, and provided subsidies to the victim for the renovation of the facilities. The Defendant paid KRW 28 million out of the total project cost of KRW 28 million to the Defendant 40,000,000,000 won to the Defendant 280,000 won. However, the Defendant did not have any intent or ability to receive the above national subsidy from the victim under the name of Defendant 1, 200,000 won, such as the Defendant 200, 100,0000 won, which was 40,000 won from each of the above funds.

【Reasons for Recognition】

○ Defendant Hu○○: Confession deemed as a confession

○ Defendant Jeju-do: Facts without dispute, Gap’s 1 through 6, Eul’s 1 through 12 (each of them)

Each entry, the purport of the whole pleading, including the number

2. The parties' assertion

A. The plaintiffs' assertion

Defendant Hu○○, who is a public official belonging to Defendant Do, committed an illegal act by deceiving the plaintiffs and receiving state subsidies related to facilities under the pretext of deceiving them in the course of performing his duties. Local governments have a duty to compensate for damages when a public official causes damage to others in violation of the Acts and subordinate statutes by intention or negligence (Article 2(1) of the State Compensation Act). The Defendants are liable to compensate for each of the above damages suffered by the plaintiffs due to the illegal acts committed by Defendant Hu○○, respectively.

B. Defendant Jeju-do’s assertion

Defendant Do○○○’s above illegal act is an act that is not related to the duties of Defendant Do○○○ as a public official belonging to Defendant Do, and it cannot be seen as an act that belongs to the above duties of Defendant Do○○○○○○. Thus, Defendant Do is not liable for damages on the part of Do○○’s illegal act that does not have business relationship. Even if Do○○○’s above act constitutes an act that belongs to the duties of Defendant Do○○’s public official objectively and externally within the scope of duties, the Plaintiffs are well aware of the fact that the above act of Defendant Do○○○ does not belong to the duties of Defendant Do○○○’s public official. Accordingly, Defendant Do has no liability for damages against the Plaintiff in relation to Defendant Do’s illegal act.

3. Determination

A. Determination on Defendant Hu○○

A judgment rendered for Confession (Article 208 (3) 2 of the Civil Procedure Act)

B. Determination as to Defendant Jeju-do

1) Occurrence of damages liability

A) If a public official intentionally or negligently causes damage to another person in violation of the Act or subordinate statutes, the State or local government shall compensate for such damage pursuant to the State Compensation Act (main sentence of Article 2(1) of the State Compensation Act). In this context, the term “in performing his/her duties” includes a direct act of performing duties of a public official or an act closely related thereto, and when determining it, the act itself must be objectively observed and viewed as a public official’s act of performing duties, even though it is not a substantial act of performing duties or there is no subjective intention of performing duties as an actor, it should be deemed that the act was performed by a public official while performing his/her duties (see, e.g., Supreme Court Decision 2004Da26805, Jan. 14, 2005).

B) In light of the above legal principles, the following circumstances are comprehensively taken into account as to the instant case’s health class, the entire purport of the facts and evidence revealed earlier, namely, Defendant Do Governor’s public official working in Jeju-do, who is a public official working in Jeju-do, and who is supported by 70% of the project cost, if he himself bears 30% of the project cost. Upon receipt of an application for a project, he could receive government subsidies, and actively entices the Plaintiffs. When ○○○ opened a passbook with which he was paid, the rest of the procedure would be recognized and processed. Defendant Do Governor, who was established each of the above passbook, did not appear to be the public official in Jeju-do’s name, and Defendant Do Governor’s public official’s public official’s public official’s public official’s public official’s public official’s public official’s public official’s private official’s public official’s private official’s private official’s private official’s private official’s private official’s private official’s private official’s private official’s private official’s private official’s private official’s private official’s private official’s private official’s private interest.

C) As to this, Defendant Jeju-do knew that the above actions by the Plaintiffs were not performed as a public official belonging to Defendant Jeju-do, and thus, Defendant Jeju-do did not bear any liability for damages against the Plaintiffs.

According to the above evidence, Defendant Do○○ was asked to apply for subsidy support program by telephone to Plaintiff Do○○○○, and the Plaintiffs who agreed to do so may be acknowledged that they did not prepare a subsidy support program. However, in full view of the facts and the purport of the entire arguments as seen earlier, Defendant Do○○ explained that Defendant Do○ was a business promoted by the Korea Agricultural Technology Institute, which was conducted by the Plaintiff Do○○○○○, and that Defendant Do○ was a business of providing subsidies by 30% out of the project cost, and that he was actively deceiving Defendant Do as if he was a person in charge of the above business. Thus, it is insufficient to recognize that the above facts recognized and the grounds asserted by Defendant Do alone are insufficient to acknowledge that the Plaintiffs did not have the authority to apply for subsidy support program, and there is no other evidence to acknowledge this. Accordingly, this part of this part of Defendant Do’s assertion is without merit.

2) Scope of liability for damages

If a local government is negligent in contributing to the occurrence and expansion of damage caused by a public official’s unlawful act, limiting liability to the State is consistent with the principle of fairness when determining the scope of the State’s liability.

In full view of the aforementioned facts and the purport of the oral argument as a whole, the following circumstances are as follows: (i) there was no facility voucher business to be supported by Defendant Do at the time; and (ii) Defendant Do ○○ was not at a position to be in charge of the relevant work; and (iii) Defendant Do ○ was not at a position to be in charge of the State subsidy-related work, even if Defendant Do ○ is assumed to be a person in charge of the State subsidy-related work, there was no authority to allow a person not entitled to receive the State subsidy to receive the subsidy at his own discretion without undergoing legal procedure; and (ii) the Plaintiffs, by telephone, did not prepare an application for the said subsidy at the time of payment to Defendant Do ○○○○; and (iv) the Plaintiffs were able to receive the said subsidy from Defendant Do ○○○○ upon receiving the said subsidy from Defendant Do ○○○, a public official, by taking into account the fact that Defendant Do ○○’s application for the subsidy and other relevant one week’s payment of the said subsidy.

Therefore, Defendant Jeju-do has a duty to pay 46,875,000 won ( = 93,750,000 won X0.5), 28,125,000 won (= 56,250,000 x 0.5), and 18,750,000 won (= 37,50,000 won X0.5), and damages for delay after February 24, 2014 for each of the said money to Defendant Hu○○ and each of the said money.

C. Sub-committee

Therefore, Defendant Do○○ is liable to pay damages for delay calculated at the rate of 193,750,00 won to Plaintiff ○○○○, KRW 56,250,000, KRW 37,500 to Plaintiff ○○○○, and KRW 37,50,000, which is the date of tort from February 24, 2014 to April 22, 2014, which is the date of delivery of a copy of the complaint in this case, KRW 5% per annum prescribed by the Civil Act, and KRW 20% per annum prescribed by the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the next day to the day of full payment. Defendant Do is liable to pay damages for delay calculated at the rate of 46,875,00,00 won among Defendant Do○○ and each of the above money, KRW 28,50,00, KRW 25,000 per annum to Plaintiff ○○, respectively, and KRW 2015,25.

4. Conclusion

If so, the plaintiffs' claims against the defendant Hu○○ are justified, and the plaintiffs' claims against the defendant Do against the defendant Do shall be accepted within the scope of the above recognition, and the rest of the office is dismissed as there is no reason.