[1] The meaning of and standard for determining "in relation to the performance of affairs", which is an element for establishing employer liability

[2] The case holding that the above act constitutes an act related to the bank's business affairs objectively in appearance, in case where an employee of a bank voluntarily does not deposit part of the bank's deposit at maturity and does not voluntarily withdraw the deposit in the name of relative and deposit in a new deposit

[3] Whether employer liability is established if the victim himself/herself knew, or was unaware of gross negligence, that the employee's act does not constitute an employer's act of performing his/her duties (negative), and the meaning of "serious negligence" in this case

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

[1] [3] Supreme Court Decision 200Da34426 decided Jan. 10, 2003 (Gong2003Sang, 570) Supreme Court Decision 98Da29735 decided Mar. 10, 200 (Gong2000Sang, 923) / [1] Supreme Court Decision 86Da1923 decided Nov. 22, 198 (Gong1989, 11), Supreme Court Decision 94Da38168 decided Oct. 13, 1995 (Gong195Ha, 3761), Supreme Court Decision 200Da619 decided Mar. 9, 201 (Gong201Sang, 84) / [3] Supreme Court Decision 200Da974979 decided Nov. 29, 209; 200Da48197 decided Oct. 29, 2007

Plaintiff 1 and two others (Law Firm International Law, Attorneys Kim Tae-tae et al., Counsel for the plaintiff-appellant)

Korea Exchange Bank (Attorney Jeong Young-hoon, Counsel for defendant-appellee)

Busan High Court Decision 2004Na19968 delivered on July 20, 2005

Of the lower judgment, the part against the Plaintiffs regarding each trust deposit in the names of Plaintiffs 1 and 2 (Account Number 405-78-0147-8, 405-78-0148-6) is reversed, and that part of the case is remanded to Busan High Court. The remaining appeals by Plaintiffs 1 and 2 and all appeals by Plaintiffs 3 and the Defendant are dismissed. Of the costs of appeal, the costs of appeal by Plaintiffs 3 and the appeal by the Defendant against the same Plaintiff are borne by each party.

The grounds of appeal are examined.

1. Regarding the plaintiffs' grounds of appeal

A. As to the first ground for appeal

(1) The cooking of evidence and the fact-finding based on it belong to the exclusive authority of the fact-finding court unless they violate the rules of experience or logic and violate the principle of free evaluation of evidence (see, e.g., Supreme Court Decisions 87Meu683, Nov. 8, 198; 2005Da77848, May 25, 2006).

In light of the above legal principles and records, it is reasonable that the court below recognized that the plaintiff 1 and the plaintiff 2 entrusted the right to deposit each of the trust deposits of this case (Account Number: 405-78-0147-8, 405-78-0148-6) in the name of the above plaintiffs 1 to the non-party 1 upon termination of the trust deposit of this case at maturity, and there is no violation of the rules of evidence as alleged in the grounds of appeal. Thus, the ground of appeal on this part is without merit.

(2) Meanwhile, the phrase “in relation to the performance of affairs”, which is an element for an employer’s liability under Article 756 of the Civil Act, means that an employee’s unlawful act is objectively deemed to have engaged in the performance of affairs without considering any subjective circumstances when it appears that the employee’s act is objectively related to the employee’s business activity or the performance of affairs. Here, whether it is objectively related to the employee’s performance of affairs should be determined by considering the degree related to the employee’s own duties and illegal acts, as well as the degree of the employee’s inherent duty, as well as the degree of the employee’s responsibility for causing risks and the lack of preventive measures (see, e.g., Supreme Court Decisions 86Da1923, Nov. 22, 198; 200Da6119, Mar. 9, 2001).

In light of the adopted evidence, the court below determined that the non-party 2 and the plaintiff 2 delegated the authority to the non-party 1 with respect to the establishment and termination of deposits, stock transaction, etc. whenever they manage their assets in the Republic of Korea through the non-party 1, and processed the affairs by entrusting them with the authority to the non-party 1 as to the necessary matters at that time, and that the plaintiff 1 and the non-party 2 delegated the authority to deposit other deposits by terminating each of the trust deposits in the name of the above plaintiffs with the maturity of the above plaintiffs. However, the non-party 1 cancelled each of the trust deposits in this case after the maturity of the trust deposits in this case and then arbitrarily consumed the amount of KRW 10,000,000 for each of them. The above non-party 1's withdrawal of deposits in this case was done in the capacity of the above plaintiffs' agent. The embezzlement of deposits made by the non-party 1 on behalf of the above plaintiffs is merely a tort committed by the non-party 1 and cannot be deemed related to the execution of the affairs of the defendant bank.

However, this decision of the court below is not acceptable.

In the case of a bank transaction with a large amount of transaction, there are many cases where the employees attracting such amount of transaction take advantage of the customer convenience, such as handling the necessary work on behalf of the relevant bank transaction, and where the employees move to the workplace, the customer changes his/her place of transaction and makes a transaction at the same time. Such a method of transaction cannot be deemed to be an example of a bank transaction at all in the same time in a way that the bank employees frequently use it in order to increase the receipt of deposits.

In addition, according to the facts and records of the court below, the plaintiffs started to deposit KRW 100 million at the defendant bank's bank's account at the recommendation of the non-party 1, who is a relative of the sixth degree and employee of the defendant, at the time of the non-party 1's work. The non-party 1 transferred to the defendant bank's account at the same time on February 1998, which added KRW 100 million to the existing bank's deposit at the same Dong branch. The new bank's deposit at the same time was deposited at the same time as the new bank's new bank's bank's bank's deposit at the same time, and the new bank's deposit at the same time without the defendant bank's new deposit's maturity at the same time and with the non-party 1's new bank's deposit at the same time. The plaintiffs did not have a direct relation with the non-party 1, who was in charge of the non-party 1's new bank's deposit at the same time as the new bank's deposit at the same time.

In full view of these circumstances, it is reasonable to view that: (a) Plaintiff 1 and Plaintiff 2 delegated the authority to terminate and withdraw each of the instant trust deposits to Nonparty 1; and (b) only because Nonparty 1 was a close relative; (c) he was an employee of Defendant Bank and continued to engage in transactions for several years; and (d) Nonparty 1, as an employee of Defendant Bank, did not only in the status of the said Plaintiffs’ agent but also in the status of managing and providing convenience to the principal customer; (b) therefore, it is objectively necessary to deem that Nonparty 1 did not voluntarily deposit part of each of the instant trust deposits at maturity but also used individually in the course of depositing them at the maturity and deposit; and (c) it constitutes an act related to the Defendant’s execution of business affairs.

Nevertheless, the judgment of the court below which made a different judgment is erroneous in the misapprehension of legal principles as to the act of performing affairs, which is an element of employer liability, which affected the conclusion of the judgment. The ground of appeal on this part by Plaintiffs 1 and 2 is with merit

B. Regarding ground of appeal No. 2

The fact-finding or determination of the ratio of comparative negligence in a damage compensation case due to a tort falls under 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 Decisions 89Meu1275, Jul. 23, 1991; 2005Da57707, Feb. 10, 2006).

Examining the records in light of the above legal principles, the court below’s fact-finding or its determination on the grounds of comparative negligence is just, and it cannot be deemed that it is considerably unreasonable in light of the principle of equity. The ground of appeal on this part is rejected.

2. As to the Defendant’s ground of appeal

A. Even if an employee's illegal act appears to fall within the scope of external execution of business, if the injured party knew, or was unaware of, the fact that the employee's act does not constitute an act of supervising the business on behalf of the employer or the employer, the employer shall not be held liable on behalf of the employer or the employer (see Supreme Court Decisions 92Da10531, Jul. 28, 1992; 2004Da43886, Sept. 20, 2007; 2004Da43886, Sept. 20, etc.). In this case, the term "major negligence" means a situation where it was known that the other party to the transaction would not have lawfully committed the act of the employee within his official authority, but it was extremely unreasonable to view that the other party was in violation of the duty of care required by the general public on behalf of the employer or the employer, and that it is not necessary to protect the other party from an equitable point of view (see, e.g., Supreme Court Decisions 2000Da46974, Apr. 29797.

In light of the above legal principles and the legal principles and records as to the plaintiffs' ground of appeal No. 1, the court below's determination that the non-party 1 voluntarily withdrawn the plaintiffs' deposits and consumed them for personal purposes after recognizing the facts as stated in its reasoning constitutes an act related to the management of the defendant bank objectively in appearance, and even if the non-party 1's act was negligent in gathering the circumstances that it was not legitimate within his authority, it cannot be viewed that the non-party 1's act was known or was not known due to the gross negligence to the extent that the defendant bank was exempted from its responsibility, and that the court below's determination that the non-party 1's appointment and supervision did not have any negligence with the defendant bank as to the non-party 1's appointment and supervision is just and acceptable, and there is no violation of the rules of evidence or misapprehension of the legal principles

3. Conclusion

Therefore, the part of the lower judgment against Plaintiffs 1 and 2 regarding each of the instant trust deposits is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The remaining appeals by Plaintiffs 1 and 2 and the appeals by both Plaintiffs 3 and the Defendant are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Si-hwan (Presiding Justice)