[1] The meaning of an employee as an execution assistant under Article 391 of the Civil Code

[2] In a case where a fire occurred due to a contractor’s negligence while a lessor performed a construction work by providing a contract to a third party to perform the duty of repairing the leased object under a lease agreement, whether the lessor is liable to compensate the lessee for the nonperformance pursuant to Article 391 of the Civil Code (affirmative)

[3] Whether the fact-finding and the determination of ratio of comparative negligence are matters of full power of the fact-finding court (affirmative)

[1] An employee as a performance assistant under Article 391 of the Civil Code generally satisfies the obligor's intent and is not necessarily required to be in a relationship with the obligor's instructions or supervision. Thus, the obligor's subordinate position is not an independent position.

[2] In a case where a lessor performs a contract with a third party under a lease agreement with a lessee to repair a leased object facility, the contractor shall be deemed an employee of the performing assistant regardless of whether the lessee is subordinate to the lessor. In a case where a fire occurs due to the contractor’s negligence while the contractor performs repair works for the facility, the lessor is responsible for the occurrence of the said fire pursuant to Article 391 of the Civil Act, and thus, the lessor is liable for the nonperformance of the contractual obligation against the lessee.

[3] Where the victim was negligent in the occurrence or expansion of damages in a tort case due to tort or nonperformance of obligation, the fact-finding or the ratio of comparative negligence is the exclusive authority of the fact-finding court, unless it is deemed that it is considerably unreasonable in light of the principle of equity.

[1] Article 391 of the Civil Act / [2] Articles 390, 391, and 623 of the Civil Act / [3] Articles 396 and 763 of the Civil Act

[1] [2] Supreme Court Decision 98Da51077, 51084 decided Apr. 13, 1999 (Gong1999Sang, 868) / [3] Supreme Court Decision 93Da1466 decided Nov. 26, 1993 (Gong194Sang, 193), Supreme Court Decision 95Da17267 decided Jul. 25, 1995 (Gong1995Ha, 29555), Supreme Court Decision 98Da50586 decided Jan. 21, 200 (Gong200Sang, 470), Supreme Court Decision 98Da38623 decided Feb. 22, 200 (Gong2000; 771Sang, 200; 206Da62681 decided Feb. 26, 200)

Swel Free Trade Corporation

Seoul Special Metropolitan City Agricultural and Fishery Products Corporation (Law Firm Woo General Law Office, Attorneys Park Ba-soo, Counsel for the defendant-appellant)

Seoul High Court Decision 2000Na37137 delivered on June 8, 2001

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

1. The defendant's first ground for appeal

The court below held that the plaintiff had an assistant's duty to repair the agricultural and fishery products distributed within the village market, including the freezing dong of the agricultural and fishery products wholesale market (hereinafter referred to as the "Seman market") from the defendant, and the warehouse operator receiving storage fees, and the defendant ordered the inside facilities of the warehouse agreement of this case to repair them completely and repair them, and it was called "Seung Engineering Co., Ltd." (hereinafter referred to as "Seuri Engineering"). The original contract was awarded to the new global engineering corporation, but, due to the bankruptcy of the above company, He taken over construction as joint and several sureties, which is a joint and several sureties of the above company's work and executed the above construction. But according to the facts that the non-party 1, the non-party 2, and the non-party 3 had an assistant's employees, who were part of the machinery and equipment, suffered damages from the fire's loss caused to the plaintiff's employees, as well as damages caused by the fire's loss caused by the fire's loss to the plaintiff's employees.

An employee as an agent of performance under Article 391 of the Civil Code generally is sufficient for a person who performs activities falling under the act of performance of an obligation under the obligor’s consent, and is not necessarily required to be related to the obligor’s instruction or supervision. Thus, in cases where a lessor repairs facilities for lease by granting a contract to a third party according to an agreement under a lease agreement with the lessee, the contractor shall be deemed an employee of the performance assistant regardless of whether the lessee is subordinate to the lessor. In cases where a fire occurs due to the contractor’s negligence while the contractor performed the repair of the facilities, the lessor shall be deemed an employee of the performance assistant. In such cases, the lessor is liable for damages due to the lessee’s nonperformance of the obligation (see Supreme Court Decision 98Da51077, 51084 delivered on April 13, 199).

Upon examining the records in light of the above legal principles, the court below's decision that the defendant is liable to compensate the plaintiff for the damages caused by the fire of this case caused by the defendant's negligence as the defendant's performance assistant is not sufficient, but it is just and acceptable, and there is no error of law by misunderstanding the legal principles as to the performance assistant as otherwise alleged in the ground of appeal. The ground of appeal pointing this out is without merit.

2. The plaintiff's grounds of appeal and the defendant's second ground of appeal

The court below's finding of facts or determination of the ratio of damages to the victim in tort or non-performance of obligation belongs to the exclusive jurisdiction of the fact-finding court unless it is deemed that it is remarkably unreasonable in light of the principle of equity (see, e.g., Supreme Court Decisions 93Da1466, Nov. 26, 1993; 98Da38623, Feb. 22, 2000; 201Da6251, 6268, Jan. 8, 2002; 2001Da625268, etc.). In light of the records, the court below's finding of facts that the court below did not perform all work on the first holiday, in principle, and it is hard to find that the plaintiff did not have any reasonable duty of care to prevent fire from being discharged on the day when it submitted work plans to the supervisor, and approved the above work plan to prevent fire from being discharged on the same day as the plaintiff's fire storage.

In addition, according to the records, the above owner of the deposited article filed a lawsuit against the defendant as Seoul District Court 96Gahap3128 against the defendant, which became final and conclusive, and the damages caused by the fire of the deposited article among the damages of this case against the plaintiff, which the plaintiff sought damages against the defendant, shall be acknowledged as the damages suffered by the plaintiff due to the above damages of the owner of the deposited article, but the defendant shall not claim the indemnity on the ground that the plaintiff is the joint tortfeasor after the plaintiff paid damages against the owner of the deposited article due to tort, etc.

The grounds of appeal by the plaintiff and the defendant cannot be accepted.

3. Conclusion

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

Justices Song Jin-hun (Presiding Justice)