[1] In a case where the customer provided the purchase fund of the certificate of deposit to the bank employee, but the certificate of deposit is not issued actually, whether a sales contract for the certificate of deposit is established (negative)

[2] The meaning of "in relation to the execution of affairs, which is the requirement for the employer's liability under Article 756 of the Civil Code, and the standard for its determination

[3] In a case where the victim himself/herself knew or did not know by gross negligence that the employee's act does not constitute an employer or an office supervisor's act in lieu of the employer, whether the employer's liability is established (negative)

[1] The certificate of deposit is a securities issued in the bearer discount form by a commercial bank and requires the possession of a certificate of deposit in the transfer and exercise of the right. Therefore, if the certificate of deposit is not issued actually, the customer’s provision of the money to the bank employee under the pretext of purchasing it cannot be concluded as a sales contract between the customer and the bank.

[2] 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 Code, means that if an employee's tort appears objectively to be related to the employee's business activities, performance of duties, or performance of duties, it shall be deemed that the employee's act without considering the actor's subjective circumstances. Whether it is objectively related to the employee's performance of duties should be determined by considering the degree of the employee's inherent duties and tort, the degree of the employee's occurrence of risks to the damages and the degree of

[3] Even in cases where an employee's illegal act appears to fall within the scope of the execution of administrative affairs externally, where the victim himself/herself knew, or did not know, due to gross negligence, that the employee's act does not fall within the scope of the execution of administrative affairs, the employer's liability shall not be imposed on the employee, instead of the employer or the supervisor

[1] Article 523 of the Civil Act / [2] Article 756 of the Civil Act / [3] Article 756 of the Civil Act

[2] Supreme Court Decision 86Da1923 delivered on November 22, 198 (Gong1989, 11) Supreme Court Decision 95Da46890 delivered on January 26, 1996 (Gong1996Sang, 765) Supreme Court Decision 95Da3953 delivered on February 10, 198 (Gong1998Sang, 652), 98Da3930 delivered on January 26, 199 (Gong1999Sang, 355 delivered on July 27, 199), 9Da6272 delivered on July 27, 199 (Gong1999, 199Sang, 199) / [3] Supreme Court Decision 9Da39979 delivered on June 28, 198, 199; 9Da39799 delivered on September 29, 197 (Gong199, 17599)

Yellow People (Attorney Kim Jong-soo, Counsel for the defendant-appellant)

Defendant Bank (Attorney Lee Jae-soo et al., Counsel for the defendant-appellant)

Seoul High Court Decision 98Na8754 delivered on May 13, 1998

All appeals are dismissed. The costs of appeal are assessed against each party.

1. We examine the Plaintiff’s grounds of appeal as to the primary claim.

According to the reasoning of the judgment below, the court below rejected that the non-party (the non-party on October 15, 1992) was aware of the deceased before the head of Incheon Branch of the defendant bank, and then purchased the certificate of deposit issued by the defendant bank from September 1986 to October 198, and traded with the defendant bank through the method that the plaintiff would receive the certificate of deposit issued by the defendant bank from the defendant bank (hereinafter referred to as the "the passbook of this case") and received the certificate of deposit with the maturity of 14,000,000 won of the certificate of deposit issued by the plaintiff on June 16, 1991. The non-party (the non-party on October 15, 1992) was aware of the new certificate of deposit with the maturity of 19,000 won of the certificate of deposit issued by the defendant bank, and the plaintiff did not receive the new certificate of deposit with the maturity of 14,000,000 won of the certificate of deposit with the maturity of 1916.

In light of the records, the fact-finding of the court below is just and acceptable, and since the certificate of deposit is issued in the bearer discount form issued by commercial banks and requires the possession of a deed in the transfer and exercise of the right, if the certificate of deposit is not issued actually, the customer's offering of funds to the employees of the bank under the pretext of purchasing it is not possible to establish a sales contract for the certificate of deposit between the customer and the bank. Thus, it is proper for the court below to reject the plaintiff's primary claim under the premise that the sales contract for the certificate of deposit between the plaintiff and the defendant has been established, and it is not erroneous in the misapprehension of the rules of evidence, or in the misapprehension of the legal principles as to the nature of the collection entrustment agreement or the establishment of the contract of deposit, or in the misapprehension of the legal principles as to the establishment of the contract of deposit, or the omission of judgment

2. We examine the grounds of appeal by the plaintiff and the defendant as to the conjunctive claim.

A. As to the Defendant’s ground of appeal as to whether employer liability is established

The phrase "in relation to the performance of an employee's business", which is an element for the employer's liability under Article 756 of the Civil Act, means that if an employee's unlawful act objectively appears to fall under the scope of an employer's business activities or performance of business affairs, or to be related thereto, without considering the offender's subjective circumstances. Whether it is objectively related to the performance of business affairs should be determined by considering the degree of the employee's original duties and the degree of the relationship with the tort, as well as the degree of the employer's liability for causing damage and the degree of the employer's failure to take preventive measures (see, e.g., Supreme Court Decisions 86Da1923, Nov. 22, 198; 95Da46890, Jan. 26, 1996; 95Da39533, Feb. 10, 198).

In light of the above legal principles and records, the judgment of the court below that the above act of the deceased constitutes an act related to the duties of the head of the defendant bank and that the plaintiff was unaware of the fact that the deceased's act does not constitute a legitimate act of performing his duties, and that such an act does not constitute a gross negligence to the extent that such an act is exempted from the defendant's liability, is just and there is no error in the misapprehension of legal principles as to facts against the rules of evidence, reasons, incomplete deliberation, or employer's liability, as otherwise alleged in the ground of appeal.

B. As to the ground of appeal by the plaintiff and the defendant on the comparative negligence ratio

In a claim for damages arising from a tort, the fact-finding or determination of the ratio of comparative negligence is within the exclusive authority of a fact-finding court unless it is deemed that it is considerably unreasonable in light of the principle of equity (see, e.g., Supreme Court Decision 85Meu1191, Nov. 26, 1985).

In light of the records, it seems appropriate for the court below to recognize the transaction circumstances as stated in its holding and determine the plaintiff's negligence as 60%, and there is no error of law such as misconception of facts, mistake of reason, and misapprehension of legal principles as to comparative negligence, as otherwise alleged in the ground of appeal by both the plaintiff and the defendant

C. As to the Defendant’s ground of appeal on short-term extinctive prescription and damages

Examining the reasoning of the judgment below in light of the records, the court below rejected the defendant's assertion that the short-term extinctive prescription of three years has been completed before the plaintiff filed the lawsuit in this case, and it is reasonable to find that the damages suffered by the plaintiff are equivalent to the amount paid by the plaintiff to the deceased as the purchase price of the certificate of deposit, and the measures of the court below calculated the purchase price after deducting interest from the issuance date by applying 13% per annum from the par value of the certificate of deposit to the maturity date shall also be justified, and there is no error of law such as misconception of facts

3. Any ground of appeal cannot be accepted.

Therefore, all appeals are dismissed, and the costs of appeal are assessed against each losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yoon Jae-sik (Presiding Justice)