[1] The meaning of "in relation to the performance of affairs," which is an element for establishing an employer's liability, and the standard for its determination

[2] In a case where a victim's bad faith or gross negligence is recognized as a tort committed by an employee, whether an employer's liability is established (negative), and the meaning of the victim's gross negligence exempted from the employer'

[3] The case holding that the employer liability of a securities company shall be recognized on the ground that the victim was aware of the fact that the investment recommendation by the head of the securities company and the receipt of money therefrom exceeded his/her scope of business execution, or that he/she was unaware

[1] Article 756 of the Civil Act / [2] Article 756 of the Civil Act / [3] Article 756 of the Civil Act

[1] [2] Supreme Court Decision 200Da34426 decided Jan. 10, 2003 (Gong2003Sang, 570) / [1] Supreme Court Decision 86Meu1923 decided Nov. 22, 198 (Gong1989, 11) Supreme Court Decision 95Da3953 decided Feb. 10, 1998 (Gong198Sang, 652) / [2] Supreme Court Decision 97Da4978 decided Jul. 24, 1998 (Gong198Ha, 2203), Supreme Court Decision 2002Da62029 decided Feb. 11, 2003 (Gong2003; 785 decided Feb. 23, 2005)

Plaintiff (Law Firm, Kim & Lee, Attorneys Kang Young-soo et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm Sejong, Attorneys Kim Yong-ho et al., Counsel for the defendant-appellant)

Busan High Court Decision 2004Na19944 delivered on January 12, 2006

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

The grounds of appeal are examined. The phrase "in relation to the performance of an employee's business", which is an element for an employer's liability under Article 756 of the Civil Act, means "in the event an employee's unlawful act objectively falls under the scope of an employer's external execution of business or office work, or in relation thereto, it shall be deemed an act concerning the performance of business without considering the actor's subjective circumstances. Whether it is objectively related to an employee's performance of business should be determined by considering the degree of the employee's original duty and tort, and the degree of the employee's occurrence of risk to damage and the degree of responsibility for failing to take preventive measures (see, e.g., Supreme Court Decisions 86Meu1923, Nov. 22, 198; 95Da39533, Feb. 10, 198). In addition, even if an employee's unlawful act falls under the scope of an employer's external execution of business, it is deemed that the employee's act was not legally required for the other party's duty of care.

According to the court below's determination, the non-party, the head of a branch office of the defendant company, sold the shares entrusted by the plaintiff, and the plaintiff found at the defendant company's Youngdo branch office to be paid the sales price of the above shares, recommended the non-party to again entrust the non-party with the above amount of KRW 466,726,096 (hereinafter "the above amount"), which is a part of the sales price of shares, with the State bonds, etc., and the plaintiff entrusted the non-party with the management of the above amount. The non-party's solicitation of investment and the entrustment of this case's money to the non-party shall be deemed as related to the execution of the defendant company's business. The non-party's act of not knowing that the non-party's request was made to pay interest along with the principal guarantee by managing the sales price of the shares, and without confirming the specific operating method, time, interest rate, etc., the non-party's act was not clearly entrusted to the non-party, and the non-party's personal receipts or receipts were not stated.

In the court below, it is reasonable to conclude that the entrustment agreement on the money of this case seems to be an entrustment agreement between the plaintiff and the non-party, or that it is an personal entrustment relationship between the plaintiff and the non-party. However, it cannot be concluded that the non-party's above act was not an act of performing the defendant's business or did not know that it was not an act of performing the defendant's business due to gross negligence, and therefore, the defendant company cannot be exempted from liability as

The court below did not err in the misapprehension of legal principles as to employer liability, inconsistent reasoning, and empirical rule. The defendant's ground of appeal is without merit.

Therefore, the appeal is dismissed, 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 on the bench.

Justices Shin Hyun-chul (Presiding Justice)