2012 Ghana 217406 Damages

○○

Attorney Kim Jae-hwan, Counsel for the plaintiff-appellant

Pakistan Co., Ltd.

Jung-gu Seoul Central District Court 186 - 210

Representative Director*, *, this*

[Plaintiff-Appellant] Plaintiff 1

[Defendant-Appellant]

June 27, 2013

July 18, 2013

1. The defendant shall pay to the plaintiff 37, 302, 500 won with 5% interest per annum from October 4, 2010 to August 31, 2012, and 20% interest per annum from the next day to the day of complete payment. The defendant shall bear the litigation costs.

3. Paragraph 1 can be provisionally executed.

The order is as set forth in the text.

1. Facts of recognition;

A. The defendant is a corporation mainly established for the casino business and tourism development business, and has a branch to be operated for a foreigner-only casino (hereinafter referred to as "harbor to be operated") in the premises of Gwangjin-gu Seoul Special Metropolitan City S square-dong 21 Sinsan.

B. The Plaintiff and Defendant employees’ violation of the Passport Act did not intend to depart from the Republic of Korea for the purpose of residing in Bolivia or for the purpose of residing in Bolivia, but not for the fact that they had left Korea with Bolivia in the past. 2) Nevertheless, the Defendant’s employee Lee ○○ Deputy Director, obtained a permanent residence permit from the Plaintiff on October 2008, and induced the Plaintiff to enter a casino for exclusive use by foreigners. The Plaintiff deposited KRW 12,50,000, which is the Defendant’s employee, with the Defendant’s employee’s employees, deposited KRW 12,50,000 to the Defendant’s employees’ account, and caused the Plaintiff to create the Borivian sovereignty card under the Plaintiff’s name.

C. From November 21, 2008 to October 4, 2010, the Defendant entered a casino to be operated by the Plaintiff, a Korean national, and had him go through the gambling, etc. of KRW 3,219,820,00 through 174 and habitually lose KRW 62,105,03 in total.

D. On September 21, 201, the Plaintiff was sentenced to a fine of KRW 10,00,000 as a crime of violating the Passport Act and habitually gambling in relation to the facts described in the above paragraphs (b) and (c) on September 21, 201, and became final and conclusive on April 20, 2012.

【Uncontentious facts, Gap’s evidence, and the purport of the whole pleadings】

2. Grounds for the instant claim

The plaintiff asserts as follows as the ground for the claim of this case.

Defendant employees: (a) issued a passport to the Plaintiff as a national in an unlawful manner; and (b) assisted and abetted the Plaintiff’s gambling at a casino to be operated; (c) thereby, the Plaintiff suffered loss of KRW 12,500,000 as costs for the production of forged permanent sovereignty and KRW 62,105,00 as costs for gambling loss; and (d) Defendant employees’ aforementioned acts constitute tort against the Plaintiff, and thus, the Defendant is liable for damages suffered by the Plaintiff pursuant to Article 756 of the Civil Act as the employer.

3. Formation of employer liability; and

A. Determination on whether the employer is responsible

1) Whether a tort is committed

The above 1. The facts acknowledged in paragraph (1) and evidence Nos. 1 through 5, together with the purport of the entire pleadings, are as follows: ① one of the most fundamental and important business affairs of a casino exclusively for foreigners, such as a casino to be operated, is to closely confirm the identity and nationality of the visitors, and to control the entry of the nationals. ② Nevertheless, ○○○○, a defendant’s employee, recommended the plaintiff to access the plaintiff in a planned way to attract the plaintiff as a national to a casino customer for the purpose of increasing sales, and allowed the plaintiff to obtain the Bolivia passport by means of a series of unlawful means as seen above, and allowed the plaintiff to enter the casino exclusively for foreigners; ③ ○○ actively predicted the plaintiff to stay in the casino to be operated for the plaintiff, and finally, ○○○, a foreigner-only casino to be operated by entering the casino before the plaintiff's residence passport is issued, and eventually, the defendant’s employee's act of engaging in the above illegal acts constitutes an illegal act.

The phrase "business affairs, which are the requirement for employer's liability under Article 756 of the Civil Act," refers to "business affairs," when an employee's unlawful act objectively appears to be objectively related to the employee's business activities, business affairs, or execution of affairs, without considering the offender's subjective circumstances. Whether it is objectively related to the employee's business affairs, should be determined by considering the employee's original duties, the degree related to the employee's unlawful act, and the degree of the employee's responsibility for causing damage and the lack of preventive measures (see Supreme Court Decision 86Meu1923, Nov. 22, 198, etc.). It is reasonable to view that it is objectively related to the employee's business activities or execution of affairs, since the employee's unlawful acts are conducted for the purpose of attracting new customers and managing existing customers as the employee's marketing team employees, and their unlawful acts are conducted for the purpose of increasing the Defendant's main business affairs.

3) Whether to proximate causal relation

Furthermore, it is clear in light of the empirical rule that the Plaintiff, having the habit of gambling, has no choice but to see loss in the event that the Plaintiff continues gambling for a long time, and even if the gambling by the Plaintiff was caused by the Plaintiff’s loss of money in the casino to be developed, so long as the Plaintiff actively induced the Plaintiff to gamble by committing an illegal act of this ○○○ and ○○○○○, as long as the said illegal act provided the Plaintiff with an active incentive to gamble, it shall also be deemed that the Plaintiff suffered loss by competing with the Plaintiff’s gambling act. Therefore, proximate causation between the said illegal

4) Sub-decisions

Thus, pursuant to Article 756 of the Civil Act, the defendant is liable to compensate for damages suffered by the plaintiff due to the illegal acts committed by Lee-○, who is an employee of the defendant, and Jung-○.

B. Judgment on the defendant's argument

The defendant alleged that the plaintiff did not establish the defendant's employer's liability, since the plaintiff knew that the illegal acquisition and convenience of the defendant's employees or the business marketing therefrom were not an act within the legitimate authority of the defendant's employees. However, there is no evidence to prove that the plaintiff knew, or was unaware of, the fact that the illegal act of the defendant's employees was not legitimate within his authority. Thus, the above assertion is without merit.

4. Scope of damages.

A. Furthermore, in light of the amount of damages, the fact that the Plaintiff lost the amount of money due to the tort by Lee○-○ and Jeong-○○ and the fact that the total cost for the production of permanent sovereignty was KRW 74,605,00 ( = 62,105,03 + 12,500,000) is the aggregate of the cost for the production of permanent sovereignty is as seen earlier.

B. Limitation on liability

Like the case where an employer assumes an employer’s liability due to an employee’s negligent tort, if the victim was negligent in contributing to the occurrence and expansion of the damage caused by the employee’s intentional tort, the scope of the employer’s liability may be limited by taking into account the fault of the victim (Supreme Court Decision 2002.)

2. 26. See Supreme Court Decision 2000Da56952 Decided 26. 200

In this case, the public health room, ① whether to enter a casino and conduct a game, and the amount of gambling shall be determined by the Plaintiff’s choice and decision. The Plaintiff has entered the Gangseo Islands Casino in Gangwon-do, and had long-term gambling even before the instant case. The Plaintiff’s gambling habits was also caused by the Plaintiff’s damage. ② The Plaintiff also consented in the issuance of a permanent residence right by 00,000,000,000,000 won for the purpose of gambling, while recognizing that the Plaintiff was issued a permanent residence right by way of 0,000,000,000 won for the purpose of gambling. ③ The Plaintiff was seriously harshly imprut gambling and gambling, even though he could sufficiently recognize the risk of gambling, and ④ the Plaintiff was punished for the violation of the Passport Act and the crime of habitual gambling in relation to the instant case. In light of all circumstances, the Plaintiff’s damages were acknowledged to have been reduced by 50% of the damages and the damages of the Defendant’s aforementioned act.

Therefore, the defendant is obligated to pay to the plaintiff KRW 37,302,50 ( = 74,605,000 x 50%) and damages for delay.

5. Conclusion

Therefore, the defendant is obligated to pay to the plaintiff 37,302,50 won and damages for delay calculated at the rate of 5% per annum as stipulated by the Civil Act from October 4, 2010 to August 31, 2012, the delivery date of a copy of the complaint of this case, which is the date of the plaintiff's final occurrence of damages, and 20% per annum as stipulated by the Act on Special Cases concerning Expedition, etc. of Legal Proceedings from the next day to the date of full payment.

Ultimately, the plaintiff's claim of this case is accepted on the grounds of the reasons.

Judges Lee Jin-hee