(영문) 서울고등법원 2019.1.31. 선고 2018나2055198 판결

The judgment of the first instance is revoked. In the first instance court, the defendant must pay to the plaintiff 228,590,000 won and the amount of money equivalent to 15% per annum from the day following the delivery of the application for modification of the claim and the cause of the claim as of November 9, 2017 to the day of complete payment. In the first instance court, the defendant jointly and severally with C to the plaintiff 228,590,000 won and the amount of money calculated at the rate of 15% per annum from the day following the delivery of the application for modification of the claim and the cause of the claim as of November 9, 2017 to the day of complete payment (the plaintiff was remanded to the court of the first instance before the remand, and the plaintiff added the amount of money to the preliminary claim for damages due to the existing tort, and the plaintiff reduced the claim as above, and reduced the purport of the appeal within the extent of 1).

Reasons

1. Scope of the judgment of this court;

A. Relevant legal principles

If the plaintiff's main claim is dismissed and only the defendant appealed against the judgment of the appellate court which accepted part of the conjunctive claim, and the plaintiff did not appeal against the plaintiff, the appellate court's decision on the main claim is not subject to investigation of the appellate court, but only the part against the defendant among the conjunctive claim before remanding. Thus, if the defendant's appeal is justified, the appellate court shall reverse only the part against the defendant concerning the conjunctive claim among the judgment of the appellate court before remanding. The appellate court's decision on the main claim which is not subject to the reversal and remanded shall be affirmed at the same time as the judgment of the appellate court is reversed and remanded, and as a result, the appellate court's decision on the main claim shall be limited to the part against the defendant among the conjunctive claims (see, e.g., Supreme Court Decision 2001Da62213, Dec. 24, 201)

B. Progress of the instant case

The records of this case show the following facts.

1) In the first instance trial, the Plaintiff asserted to the effect that “the Defendant was involved in the Defendant’s illegal act, or at least it is inevitable to view that he was aware that he was the stolen property, and thus constitutes joint tortfeasor with C,” and sought payment of “306,781,213 won as compensation for damages, and the amount at the rate of 15% per annum from the day following the delivery of a duplicate of the instant complaint to the day of full payment. However, the first instance judgment dismissed the Plaintiff’s claim, and the Plaintiff appealed against this.

2) In the court of the first instance prior to the remanding of the case, the Plaintiff asserted that “The Plaintiff did not pay the purchase price to the Plaintiff even though the Defendant purchased 224 Nowon-do computers owned by the Plaintiff from May 6, 2015 to October 17, 2015 (hereinafter “the instant Nowon-do”) in 228,590,000 won from May 6, 2015 to the primary claim for compensation for damages equivalent to the same amount.” In addition, the Plaintiff claimed that “C, who is the sales member of the Plaintiff, voluntarily disposed of the instant Nowon-do from May 6, 2015 to October 17, 2015, purchased 228,590,000 won for the unpaid goods under the instant Nowon-do sales contract, and then, “C, who is the sales member of the Plaintiff, did not pay the purchase price to the Defendant, as the Defendant did not participate in or embezzled the Defendant’s acquisition of the instant goods in accordance with Article 70 of the Civil Act.

3) The judgment of the first instance prior to remand dismissed the Plaintiff’s primary claim, and partly accepted the Plaintiff’s conjunctive claim. Accordingly, only the Defendant filed an appeal regarding the conjunctive claim in the judgment prior to remand.

4) The Supreme Court reversed the part concerning the conjunctive claim in the judgment prior to remanding the Defendant’s appeal and remanded this part of the case to this court.

C. Judgment on the scope of this Court’s trial

Examining the progress of the instant case in light of the legal principles as seen earlier, the part of the Plaintiff’s claim in the judgment prior to remanding becomes final and conclusive simultaneously with the declaration of reversal and return of the conjunctive claim, and as a result, the scope of the trial in this court after remanding the Plaintiff’s conjunctive claim.

It should be deemed that the damages claim part against the defendant is limited to the part against the defendant.

2. Basic facts2)

A. The Plaintiff is a stock company with the purpose of the electronic and electrical products wholesale and retail business, which operates the E store located in the military city F (hereinafter “instant store”), and C was engaged in the sales of electronic equipment at the instant store from July 1, 2012 to October 28, 2015 while serving as the sales member.

On January 19, 2015, the Defendant established D(hereinafter referred to as “D”) for the purpose of operating the Internet integrated shopping mall by selling Nowon-do computers, etc. by means of electronic commerce.

B. From May 6, 2015 to October 17, 2015, C sold the instant Nowon-gu owned by the Plaintiff to the Defendant in KRW 228,590,000, and the Defendant transferred the said amount in full to the personal account or the third party’s personal account designated by C.

C. C, while serving as the sales partner of the Plaintiff on December 3, 2015, he/she voluntarily removed 170 computers from May 31, 2015 to October 21, 2015, the market price of 250,747,54 won and embezzled and embezzled by disposing of 170 computers of No. 250,747,554 won, and, in fact, deceiving the employees of the Plaintiff and 10 times from September 16, 2015 to September 25, 2015 (around 2016, 2015, 2015, 38, 2016, 205, 205, 2016, 305, 205, 2016, 205, 2016, 205, 2016, 205, 2016, 2016, 2016, 316,25,206,2636,27.

[Reasons for Recognition] The facts without dispute, Gap evidence 1 to 12, Eul evidence 1 to 3 (including the number; hereinafter the same shall apply), the testimony of the witness C of the first instance trial, the purport of the whole pleadings

3. Judgment on the plaintiff's conjunctive claim

A. Summary of the plaintiff's conjunctive claim

From May 5, 2015 to October 17, 2015, C, a seller of the Plaintiff, voluntarily removed the instant Nowon-North Korea from office and embezzled it to the Defendant. Since he/she participated in C’s embezzlement or acquired it with the knowledge that he/she was the stolen goods of this case, the Defendant, as a joint tortfeasor under Article 760 of the Civil Act, is liable to compensate the Plaintiff for damages worth KRW 228,590,00,000, equivalent to the price of goods of the instant Nowon-North Korea, jointly with C, as a joint tortfeasor under Article 760 of the Civil Act.

B. Determination3

In light of the following circumstances, which are acknowledged based on the evidence and the purport of the entire pleadings as seen earlier, the evidence submitted by the Plaintiff up to this court and the circumstances surrounding the assertion are insufficient to acknowledge that the Defendant committed a joint tort with C, and there is no other evidence to prove otherwise. The Plaintiff’s preliminary claim is without merit.

1) An employee of a store that sells goods is deemed to have all the authority regarding the sale of the goods, except in cases where the other party is in bad faith (Article 16(1), (2), and Article 14(2) of the Commercial Act). In light of the foregoing, it is reasonable to deem that the Plaintiff’s store constitutes a store that displays electronic equipment and sells it to an unspecified number of unspecified customers, and that C, which is a seller of the instant store, has all the power of representation regarding the sale of electronic equipment, such as entering into a contract regarding the sale of electronic equipment, determining terms and conditions of the contract, and receiving the price. Meanwhile, as seen earlier, C’s voluntary removal of the instant soft and embezzled it by selling it to the Defendant. However, such fact alone is insufficient to readily conclude that C participated in the act of embezzlement of the instant Trade in collusion with C, who is the Plaintiff’s sales employee, or that C acquired it with knowledge that it was embezzled without the right to receive the sales and the price of the instant goods, and there is no other evidence to acknowledge the effect of the sales contract between the Plaintiff and the Defendant.

2) As above, the defendant paid the price in accordance with the conclusion and implementation of a sales contract in force under the Commercial Act and received the price in this case, so long as the defendant's bad faith or gross negligence is not acknowledged, the defendant's act of receiving the trade in this case may not be deemed to be an unlawful act solely on the ground that C was negligent in failing to confirm the circumstances where C was merely suspected of selling the trade in this case by unlawful means. However, considering all the evidence submitted by the plaintiff to this court, such as evidence Nos. 10, 12, and testimony of the witness of the first instance trial, and the circumstances of its assertion, it is insufficient to recognize that C was a bad faith or gross negligence on the part of the defendant, regardless of the fact that C was negligent in verifying the circumstances where C sold the trade in this case by unlawful means, and there is no other evidence to acknowledge this otherwise.

3) Under the Criminal Act, stolen property refers to a thing obtained by an illegal act that may cause infringement on property rights, and the victim has the right to pursue or right to claim a return. However, as seen earlier, as long as the validity of the contract between the Plaintiff and the Defendant is recognized by Article 16 of the Commercial Act, the Plaintiff cannot have the right to claim a return against the Defendant on the ground that C embezzled the North Korea. Therefore, it is difficult to evaluate the Defendant’s acquisition of the North Korea as a stolen property under the Criminal Act.

4) If it is difficult or impossible to recover by infringing upon the possession of the original owner by acquiring stolen goods due to occupational negligence, such act is jointly related to the principal offender’s unlawful act committed by the principal offender, such as theft and embezzlement, with respect to the infringement of the original owner’s rights, and joint tort is established. However, as seen earlier, the Defendant paid the price according to the lawful and effective sales contract, and received the instant Nompt., which cannot be evaluated as an unlawful act that makes it difficult or impossible to recover possession of the goods for which the Plaintiff’s right to claim return, etc. is recognized.

4. Conclusion

Therefore, a claim that the plaintiff changed from the court of the first instance before the remand to the conjunctive one shall be dismissed as it is without merit. Since the judgment of the first instance is just, the plaintiff's appeal against this is dismissed as it is without merit. It is so decided as per Disposition.

Judges

Justices Kim Jong-chul

Judges Kim Yong- For

Judges Notarial Do;

Note tin

1) As examined below, the Plaintiff sought payment of KRW 306,781,213 as compensation for damages against the Defendant at the first instance court and the payment at a rate of 15% per annum from the day following the delivery of a copy of the instant complaint to the day of full payment, and reduced the purport of the claim as above.

2) The content of this part is substantially the same as the relevant part of the judgment prior to remand.

3) This part was written in accordance with the purport of the judgment of remanding.

심급 사건

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서울고등법원 2019.1.31.선고 2018나2055198

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