[1] The meaning of "abetting and abetting" under Article 760 (3) of the Civil Code and the requirements for establishing tort aiding and abetting by negligence

[2] The case reversing the judgment of the court below on the ground that Gap aided and abetted Eul 's illegal act by issuing a certificate of the personal seal impression although Gap she did not have any evidence to regard that Eul she received the certificate of the personal seal impression from Eul , and Gap she issued the certificate of the personal seal impression to Eul , although Eul she knew or could have easily known that he she did not use the certificate of the personal seal impression, it cannot be readily concluded that Eul aided and abetted Eul 's illegal act

[1] Article 760 (3) of the Civil Code / [2] Article 760 (3) of the Civil Code

[1] Supreme Court Decision 98Da31264 delivered on December 23, 1998 (Gong1999Sang, 222) Supreme Court Decision 2009Da2545 Delivered on May 14, 2009

Hyundai Capital Co., Ltd.

Defendant (Attorney Lee Ho-hoon, Counsel for defendant-appellant)

Busan District Court Decision 2008Na21980 Decided July 15, 2009

The part of the judgment below against the defendant is reversed, and that part of the case is remanded to Busan District Court Panel Division.

The grounds of appeal are examined.

Article 760(3) of the Civil Act refers to any direct or indirect act that facilitates a tort, and includes not only cases of commission but also cases where an act of commission by a person responsible for an act is facilitated due to omission that does not take various measures to prevent it. Unlike the Criminal Act, the interpretation of the Civil Act, in principle, recognizes negligence as an intentional act for the purpose of compensating for damages, which is different from the Criminal Act, is able to assist a tort by negligence. In such cases, the content of negligence refers to a violation of this duty on the premise that the person has a duty of care not to assist a tort, and in order to hold the aided liable as a joint tortfeasor, there is a proximate causal relation between the aiding and abetting act and the illegal act by the person responsible for an act of aiding and abetting (see, e.g., Supreme Court Decisions 98Da31264, Dec. 23, 1998; 209Da2545, May 14, 2009).

Based on its adopted evidence, the court below acknowledged that the defendant borrowed KRW 50,00 from Nonparty 1, who is a bond company, around May 2003, and received the defendant's father's certificate of taxation, resident registration, five copies of resident registration, and five copies of the personal seal impression from Nonparty 1 at the defendant's father's request and delivered it to Nonparty 1. On May 22, 2003, the non-party 1 prepared an application for the loan under the name of the non-party 2 with the documents such as the personal seal impression issued by the defendant on May 22, 2003, and received the loan of KRW 25,10,00 from the plaintiff company (hereinafter "the loan of this case"). In light of the fact that the loan contract was not prepared between the non-party 1 and the defendant, the court below determined that the defendant was liable to compensate the non-party 1 and the non-party 2 for damages caused by the fraud by using the above documents issued by the defendant.

However, we cannot accept the judgment of the court below in light of the following points.

First, according to the records, the defendant may know that he was issued the certificate of his father non-party 2's personal seal impression on May 19, 2003 and May 21, 2003 (Evidence No. 15 and Evidence No. 5). However, there is no evidence that the defendant issued all the certificate of personal seal impression No. 5 to non-party 1.

Furthermore, even if the defendant delivered all of the above non-party 2's certificate of the personal seal impression to the non-party 1, insofar as the non-party 1 is a bond company and the defendant borrowed money from the bonds, the reason why the above certificate of the personal seal impression was issued, whether the non-party 2 was issued together with the non-party 2's certificate, and the method and process in which the non-party 1 prepared the loan application form and the loan application form in the name of the above non-party 2, it is difficult to conclude that the non-party 1 assisted the non-party 1's tort by delivering the above documents only when the defendant knew or could have easily known that the non-party 1 was aware of the above lending and the non-party 1 and the defendant were not prepared with the loan contract, etc. between the non-party 1 and the defendant.

Nevertheless, the court below, based on its stated reasoning, concluded that Nonparty 1 assisted the Defendant to commit an illegal act including the loan of this case by using the above documents delivered by the Defendant, although Nonparty 1 knew or could have known it easily, by negligence delivery of the above documents. Thus, the court below erred by misapprehending the legal principles on the liability for aiding and abetting a tort by negligence or failing to exhaust all necessary deliberations, which affected the conclusion of the judgment. The Defendant’s ground of appeal assigning this error is justified.

Therefore, the part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the lower court for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Young-ran (Presiding Justice)