[1] Whether the employment relationship between the contractor and the contractor is recognized in the case of a labor contract under which the contractor directs the contractor to perform a specific act or awarding a specific project (affirmative)

[2] The meaning of "as to the execution of affairs" under Article 756 of the Civil Code and the criteria for its determination

[3] Where a labor contractor who performed repair work of a ship under the direction and supervision of a contractor independently entrusted repair to another ship in the vicinity and caused an accident during the repair work, the case denying the subcontractor's employer's liability

[1] In the case of a so-called labor contract such as where a contractor directs a contractor to perform a specific act or awards a contract for a specific project, the employment relationship is recognized as a requirement for employer liability under Article 756 of the Civil Code even if the contractor is a contractor.

[2] Article 756 of the Civil Code provides that "as to the execution of an employee's business," if an employee's unlawful act objectively appears to be objectively related to the employee's business activity, performance of business, or execution of business affairs, it shall be deemed that the employee's act was conducted without considering the employee's subjective circumstances. Whether it is objectively related to the employee's business affairs in appearance or objectively, shall be determined by considering the degree of the employee's original duties, and the degree of the employee's occurrence of damage and the degree of the employer's responsibility for

[3] The case denying the employer's responsibility on the ground that the repair work cannot be deemed to fall under the scope of the contractor's duty when the repair work is performed in an external manner, unless the contractor showed the same appearance as the contractor has the authority to conclude the repair contract on behalf of the contractor, or unless it was in a relationship between the contractor and the contractor and the subcontractor, in case where the contractor has independently requested repair of another vessel which is in the vicinity under the direction and supervision of the contractor and caused an accident during the repair work

[1] Articles 655, 664, and 756 of the Civil Act / [2] Article 756 of the Civil Act / [3] Article 756 of the Civil Act

[1] Supreme Court Decision 92Da2615 delivered on June 23, 1992 (Gong1992, 2249), Supreme Court Decision 92Da48109 delivered on May 27, 1993 (Gong1993Ha, 1872), Supreme Court Decision 96Da53086 delivered on April 25, 1997 (Gong1997Sang, 1583) / [2] Supreme Court Decision 93Da4586 delivered on March 22, 1994 (Gong194Sang, 1310), Supreme Court Decision 94Da24176 delivered on October 25, 1994 (Gong194, 309Ha, 3095), Supreme Court Decision 97Da363979 delivered on October 36, 195 (Gong195, 195).

Jin-J Co., Ltd. (Attorney Jin-hun, Counsel for defendant-appellant)

Defendant (Law Firm Dongdong General Law Office, Attorneys Kim Yong-l et al., Counsel for the defendant-appellant)

Busan High Court Decision 96Na12993 delivered on November 20, 1997

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

We examine the grounds of appeal.

1. Summary of the judgment below

According to the reasoning of the judgment below, the court below rejected the plaintiff's above repair work on December 29, 194. The plaintiff's representative director, who was awarded a contract with the non-party 1 on the non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's repair work's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's repair work's non-party 2's non-party 1's non-party 1's repair.

The First Ground for Appeal

According to the records, the court below's rejection of the evidence that the plaintiff and the defendant agreed on the conclusion of the repair contract for the ship of this case shall be justified, and there is no error of law by mistake of facts due to violation of the rules of evidence, such as theory of lawsuit, etc.

The Second Ground of Appeal

According to the records, the above non-party 1 is a personal repairer with professional skills concerning the repair of a ship engine, and he was employed directly by the defendant and was not an employee belonging to the defendant who provides labor in a subordinate position. The judgment below to the same purport is just, and there is no error of law such as misunderstanding of facts or legal scenarios, such as the theory of legal status of non-party 1, etc.

As to the third ground for appeal

In the case of so-called labor contract, such as where a contractor directs a contractor to perform a specific act or awarding a contract for a specific project, it is acknowledged that the contract is an employer's liability under Article 756 of the Civil Act even if the contractor is the contractor, and that it is objectively recognized that an employee's illegal act is an act related to the employer's business activity or office performance, or an act related thereto, without considering the actor's subjective circumstances. However, whether it is objectively related to the employer's office performance should be determined by considering the degree related to the employee's original duty and tort, the degree related to the employee's loss and the responsibility for the employer's failure to take preventive measures (see, e.g., Supreme Court Decision 97Da16572, Oct. 10, 197).

According to the facts duly admitted by the court below, it is clear that the above non-party 1 repair work performed by the above non-party 1 is not the defendant's own business execution, which was performed by the defendant's order or delegation. However, the above non-party 1's repair work performed by the above non-party 1 under his order or delegation, and the use relation was established as an element for the employer's liability under Article 756 of the Civil Act between the above non-party 1 and the defendant. Thus, it can be seen that the above non-party 1's repair work was related to the above repair work performed by the defendant's business execution. Thus, the non-party 1's order to the above non-party 1's repair work for the above non-party 1 is for performing the above repair work's duty under the above repair contract which was executed by the defendant's order or delegation. Thus, the above non-party 1's repair work cannot be viewed as a just and reasonable ground for the above repair contract's execution of repair work within the non-party 1's own authority.

Therefore, the appeal is dismissed and all 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 Lee Yong-hun (Presiding Justice)