Cases where the borrowing of the representative of a school juristic person constitutes an illegal act committed by the corporate person itself;

If the act of borrowing money by the person who was the representative of the school juristic person is a tort, it is not the liability of the employer under the Civil Code, but the liability of compensation is the illegal act of the juristic person itself under Article 35 of the Civil Code.

Articles 35 and 756 of the Civil Act

Plaintiff

Attorney Go-won et al., Counsel for the defendant-appellant

Gwangju High Court Decision 77Na234 delivered on December 28, 1977

The judgment of the court below is reversed, and the case is remanded to Gwangju High Court.

The defendant's attorney's grounds of appeal are examined.

In full view of the contents of Gap evidence 1, Gap evidence 2-1, Eul evidence 2-1, Eul evidence 3, and testimony of non-party 2 of the court below, the court below acknowledged that non-party 1, the representative of defendant school foundation, borrowed 22.6 million won in total from the plaintiff for 54 times between January 5, 1974 and February 5, 1976 without obtaining a resolution of the board of directors or a supervisory authority as stipulated in Articles 16 and 28 of the Private School Act at the time of his employment, and used them as facilities such as construction of new high schools, middle and high schools, or cost of farm purchase, etc., which the defendant corporation operates, and ordered the plaintiff to compensate for damages by asking the employer's liability.

However, the testimony of non-party 2 at the court below is difficult to consider the above fact-finding of the court below as evidence because the testimony of the non-party 2 at the court below did not have a resolution of the board of directors or the permission procedure of the supervisory authority in this case, or because it is not stated only in the accounting books of the defendant corporation, and it is hard to regard this testimony as evidence to the purport of denying the above fact-finding of the court below. The above evidence No. 2-2 at the court below is an examination protocol of non-party 1, who was the representative of the defendant corporation, but it is hard to say that the above evidence No. 2 at the court below was merely borrowed 22.6 million won from the plaintiff from January 5, 1974 to February 5, 1976, and it was not clearly revealed when and when it was borrowed, and it is not clear that there was a transaction without any evidentiary document or method of securing repayment of a lot of money over a long period of time such as this case, and it does not result from the specific act of borrowing of evidence other than the above.

Therefore, the court below should have deliberated and judged more in detail on the above points, and on the other hand, if the above non-party 1, who was the representative of the defendant corporation, committed a tort as recognized by the court below, it constitutes a tort under Article 35 of the Civil Code, and even if there is a liability for damages, it is different from the employer's liability for damages under Article 756 of the Civil Code. Therefore, the court below should have taken due care about this point.

Therefore, the judgment of the court below is reversed and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating judges.

Justices Yu Tae-hun (Presiding Justice)