The meaning of "major negligence of the victim," which is an exemption from employer liability;

Article 756 of the Civil Act

[Plaintiff-Appellant] Plaintiff 2002Da62029 delivered on February 11, 2003 (Gong2003Sang, 785)

Plaintiff (Attorney Ha Chang-soo et al., Counsel for plaintiff-appellant)

Han Bank Co., Ltd. (Law Firm Rate, Attorneys Yoon Yong-op et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2008Na60966 decided January 9, 2009

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Seoul High Court.

The grounds of appeal are examined.

The gross negligence of the victim who is exempted from the liability of the employer refers to a situation in which it is deemed reasonable to deem that the other party to the transaction has no choice but to protect the other party from the perspective of fairness because the other party to the transaction has been aware of the fact that the other party to the transaction would not lawfully engage in the act within his authority even though he could have known that the other party to the transaction would not have been able to do so within his authority (see Supreme Court Decision 2002Da62029, Feb. 11, 2003, etc.).

According to the reasoning of the judgment below, the court below rejected the allegation by the defendant bank that the plaintiff cannot be held liable to the defendant bank since the plaintiff knew of the fact that the act of payment guarantee in this case does not belong to the legitimate scope of the business affairs of the non-party 1 or was grossly negligent in not knowing such fact, based on the reasoning of the judgment of the court of first instance, there is no evidence that the plaintiff knew of the above fact, and even based on all recognized circumstances, it cannot be deemed that

However, in light of the above legal principles, we cannot accept the judgment of the court below for the following reasons.

In other words, even according to the reasoning of the judgment of the court of first instance cited by the court below, it is acknowledged that the payment guarantee certificate of this case was not prepared in a fixed form using the financial institution through a bank counter, such as preparing a basic transaction agreement and providing collateral, and that it was prepared independently by Nonparty 1; it is difficult for banks to present the case where the bank provides a payment guarantee for a transaction between borrowed individuals with a large interest rate of 1 billion won per month; in light of the experience of business operation as the representative director of a corporation, it was difficult for the Plaintiff to know the transaction practice of the bank; the employee identification certificate of the manager attached to the payment guarantee certificate of this case is used for the receipt of land compensation not for the payment guarantee; the Plaintiff knew that the ultimate user of the loan of this case was Nonparty 2 and Nonparty 3; according to the evidence duly admitted by the court of first instance and the court below, it is hard to find the payment guarantee certificate of this case to have been prepared by Nonparty 1 as an employee identification certificate of this case and the Plaintiff’s employees who were issued the payment guarantee certificate of this case within 60 months prior to that date.

Therefore, the court below may find out that Nonparty 1 had filed a complaint against Nonparty 2 and Nonparty 3 in accordance with the records, such as whether Nonparty 1 predicted a loan to a certain extent with respect to the shopping center of Nonparty 3 and Nonparty 2, whether the Plaintiff planned to use the loan amounting to KRW 1 billion for any specific purpose, how the Plaintiff specifically lent the loan amounting to KRW 1 billion, and how the Plaintiff used it, how the payment guarantee in this case was prepared and how the certificate was properly attached with a personal seal impression, etc. (it is necessary to identify the facts revealed as a result of the investigation) and how the payment guarantee in this case was prepared by Nonparty 1, and whether Nonparty 1 had any negligence or gross negligence in charge of the management of the Defendant bank or any unreasonable business behavior, and it should have determined whether the Plaintiff had any intention to mislead the Plaintiff, but the court below rejected the Defendant bank's assertion as above, and the judgment below erred in the misapprehension of legal principles as to the victim's liability due to gross negligence, which affected the victim's result.

Therefore, without further proceeding to decide on the remaining grounds of appeal, the part against the defendant among the judgment below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Si-hwan (Presiding Justice)