[1] Where false or exaggerated advertisements of goods constitute deception

[2] Requirements for the establishment of a joint tort and whether aiding and abetting by negligence in a joint tort is possible (affirmative)

[3] The case holding that in a case where the sale advertisement was made with false and exaggerated contents as to the shape of the fall, which is an important matter in the sale of apartment on the top floor, to the extent of being criticized in light of the duty of good faith, not only the seller of the apartment but also the construction contractor shall be liable for damages

[1] The mere exaggeration or falsity in advertising and advertising of goods may be caused by lack of deception as long as it may be acceptable in light of the general commercial practice and good faith principle. However, in a case where specific facts about important matters in trading are falsely notified in a manner to the extent of being criticized in light of the duty of good faith and good faith, it constitutes deception.

[2] In the case of joint tort under Article 760 of the Civil Code, several persons jointly inflict damages on others, as well as conspiracys among actors, but it does not require joint tort. However, if the joint tort is objectively involved, it is sufficient if the joint tort is involved, and the damage is caused by the pertinent joint act, and the joint tort liability is established. Aid and abetting in joint tort refers to all direct and indirect acts facilitating the tort. Aid and abetting in a joint tort refers to all acts that facilitate the tort, and it is possible to assist by negligence as an interpretation of the Civil Code that considers the negligence as a matter of principle for the purpose of compensating for damages, unlike the Criminal Code. In this case, the content of negligence refers to a violation of this duty on the premise that there is a duty of care not to assist the tort.

[3] The case holding that in a case where the sale advertisement was made with false and exaggerated contents as to the shape of an apartment, which is an important matter in the sale of the highest apartment floor, to the extent of being criticized in light of the duty of good faith, not only the seller of the apartment, but also the contractor shall be liable for damages due to

[1] Articles 110 and 751 of the Civil Act / [2] Article 760 of the Civil Act / [3] Articles 110 and 760 of the Civil Act

[1] Supreme Court Decision 92Da52665 delivered on August 13, 1993 (Gong1993Ha, 2417), Supreme Court Decision 2007Da44194 Delivered on October 23, 2008 / [2] Supreme Court Decision 81Da1130 delivered on June 8, 1982 (Gong1982, 638), Supreme Court Decision 98Da31264 delivered on December 23, 1998 (Gong199Sang, 222), Supreme Court Decision 99Da41749 delivered on April 11, 200 (Gong200Sang, 1172), Supreme Court Decision 201Da218135 delivered on May 8, 2001 (Gong201Da2103135 delivered on May 8, 2001)

Plaintiff 1 and 15 others (Attorney Park Byung-hee, Counsel for the plaintiff-appellant)

Defendant Co., Ltd. (Law Firm Spotsan, Attorneys Park Young-chul et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2008Na37706 decided December 2, 2008

The judgment below is reversed, and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. On the first ground for appeal

In light of the express provisions of Article 66 of the Civil Procedure Act and the pleading-based litigation structure, etc. adopted by our Civil Procedure Act, the facts of the other party's assertion against one of the co-litigants in ordinary co-litigation do not affect other co-litigants (see, e.g., Supreme Court Decisions 67Da2787, May 14, 1968; 93Da47196, May 10, 1994).

According to the records, in filing the claim for damages of this case with the non-party corporation, the executor company, and the defendant company, the contractor, as co-defendant, the plaintiffs sought liability for nonperformance by asserting that the sales advertisement of this case was incorporated into the terms and conditions of the contract, and seek tort liability against the defendant company by asserting that the sales advertisement of this case is false or exaggerated advertising.

According to the reasoning of the judgment below, the court below rejected the plaintiffs' assertion that the plaintiffs' assertion against the defendant company liability for tort caused by deception is without merit, as long as the contents of the sales contract of this case were the contents of the sales contract, and the non-party corporation is liable for warranty.

However, in light of the above legal principles and the records, the plaintiffs asserted that the advertisement of this case was incorporated into the contents of the contract against the non-party corporation, one of the co-defendants, and even if it is acknowledged that the non-party corporation bears the contractual liability against the plaintiffs, such circumstance does not affect the relationship between the plaintiffs and the other co-defendants company, and thus, the court below's decision rejecting the plaintiffs' claim on the ground that the plaintiffs' claim against the defendant company was not justified in itself, is unlawful as it violates the legal principles of co-litigation and the principle of pleading,

2. On the second ground for appeal

The mere exaggeration or falsity in the publicity and advertisement of a product would be insufficient in light of the general commercial transaction practices and the good faith principle. However, in a case where specific facts about important matters are falsely notified in a manner to the extent of being criticized in light of the good faith duty, it constitutes deception (see Supreme Court Decisions 92Da52665, Aug. 13, 1993; 2007Da44194, Oct. 23, 2008, etc.).

Meanwhile, in the case of a joint tort under Article 760 of the Civil Act where several persons jointly inflict damage on another person, as well as a joint perception among the actors, it does not require any joint tort. However, if the joint act is objectively related, it is sufficient if the joint act is jointly related, and as a result, the joint tort is held liable for damages arising from the joint act related thereto (see Supreme Court Decisions 81Meu1130, Jun. 8, 1982; 2001Da2181, May 8, 2001; 2001Da2181, May 8, 2001). Aid and abetting in a joint tort refers to all direct and indirect acts that facilitate the tort, unlike the Criminal Act, it is possible to assist by negligence as a interpretation of the Civil Act that considers the negligence as a matter of principle for the purpose of compensating for damages. In this case, the content of negligence refers to a violation of this duty under the premise that it does not assist the tort.

According to the reasoning of the judgment below (family judgment), the court below rejected the plaintiffs' claim against the defendant company, on the ground that the sales advertisement of this case was made or advertised under the supervision of the non-party corporation, which is an executor, and even if there were false or exaggerated contents in the sales advertisement of this case, it cannot be deemed that tort is established against the defendant company, which is only the contractor, unless there are special circumstances such as the defendant company actively participated in the sales advertisement of this case, and even if the defendant company consented to indicate himself as the contractor in the sales advertisement or the sales guide, etc. and approved the contents

However, the facts and records revealed by the court below, i.e., ① the plaintiffs were to pay 23,720,00 or 31,423,00 won to the buyers of the apartment building of this case compared to the standard floor, and the majority floor was anticipated to be used as a dunes of the floor area by installing diverse spaces between the floor and the ceiling for the apartment building of this case. ② According to the best view of the apartment floor of this case as recorded in the guide for parcelling-out, the apartment roof of this case is set up horizontal, and the multi-level apartment is set up at a dunes, and the apartment sales contract of this case is hard to be concluded by the non-party 5 company, and the apartment sales contract of this case is set up at least 10,000,000 or more than 4,0000,0000,0000 won, which is the upper floor and 4,0000,000 won, more than 5,000.

Nevertheless, the court below's assumptive judgment that held that the defendant company did not constitute a tort is erroneous in the misapprehension of legal principles as to the establishment of joint tort, or because it did not sufficiently examine it, which affected the conclusion of the judgment. The ground of appeal assigning this error is with merit.

3. Conclusion

Therefore, the judgment of the court 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.

Justices Cha Han-sung (Presiding Justice)