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

[2] In a case where an employee's illegal act does not constitute an employer's or a supervisor's act of performing his/her duties in lieu thereof, where the victim himself/herself knew or did not know by gross negligence (negative), the meaning of "serious negligence" and "serious negligence", and the case where the other party who transacted with an employee of a financial institution can be acknowledged

[3] In a case where Gap issued a large amount of cashier's checks to Eul bank branch customer counseling office in a abnormal financial transaction by issuing a large amount of cashier's checks to Eul bank branch customer counseling room and did not issue a certificate of deposit or demand it, and Byung et al., suffered losses due to personal consumption of check money, the case holding that the judgment below holding that Eul bank's liability is erroneous in the misapprehension of legal principle

[1] The phrase "in relation to the execution of affairs," which is an element for an employer's liability under Article 756 of the Civil Act, means that if an employee's unlawful act appears objectively to be an employee's business activity, an act of performing affairs, or a related act, it shall be deemed that the employee's unlawful act was performed without considering subjective circumstances. Here, whether it is objectively related to the employee's performance of affairs should be determined by considering the degree of the employee's inherent duties and unlawful act, and the degree of the employee's responsibility for causing risks to the employee'

[2] Even in cases where an employee's illegal act appears to fall within the scope of performing his/her duties in appearance, if the victim himself/herself knew, or was unaware of the fact that the employee's act does not fall under the act of performing his/her duties in lieu of the employer or the counterparty, the employer's liability may not be imposed on the employer or the supervisor of the business instead of the employer. In this case, gross negligence means the situation where the other party to the transaction knew, if he/she had paid a little amount of attention, that the employee's act was not legitimate within his/her authority and authority, and it is deemed that there is little lack of attention to the general public and that there is no need to protect the other party from the perspective of fairness. In particular, in the transaction with a financial institution, it means that the employee of the financial institution and the counterparty of the transaction do not constitute an act of performing his/her duties in the absence of due diligence and protection from the perspective of fairness, in light of the common sense of sound financial transactions.

[3] In a case where Gap issued a large amount of cashier's checks to Eul branch customer counseling office Eul, which had no transactional relationship, and Eul issued a large amount of cashier's checks in an abnormal financial transaction manner, such as only obtaining the employee identification card of the branch manager and without obtaining or demanding the receipt of certificates of deposit in the name of the custodian, and Byung et al. suffered losses as a result of personal consumption of checks, the case holding that the court below erred in the misapprehension of the legal principle as to Gap's intentional or gross negligence in holding Gap's duty of care as the bank's site location where it is difficult to view that the issuance of checks and the preparation of cash custody certificate was objectively related to Eul's office work as the bank site location location, and even if it was not so, Gap knew that Byung actually did not belong to the scope of office work execution as the bank site location of Byung, or was aware that Byung did not have the duty of care within the scope of office execution, and there was no need for the employer's fault or gross negligence in preparing the employer's duty of care and protection from the bank's account.

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

[1] [2] Supreme Court Decision 2006Da41471 Decided January 18, 2008 (Gong2008Sang, 231) / [1] Supreme Court Decision 98Da29735 Decided March 10, 200 (Gong2000Sang, 923) Supreme Court Decision 200Da66119 Decided March 9, 2001 (Gong2001Sang, 844) / [2] Supreme Court Decision 2003Da36133 Decided February 25, 2005 (Gong2005Sang, 476) Supreme Court Decision 2004Da4386 Decided September 207 (Gong2007Ha, 1615)

Plaintiff (Attorney Kim Jong-young, Counsel for the plaintiff-appellant)

New Bank Co., Ltd. (Law Firm Rate, Attorneys Shin Sung-si et al., Counsel for the defendant-appellant)

Busan High Court (Capwon) Decision 2010Na3547 decided April 28, 2011

The part of the judgment below against the defendant is reversed, and that part of the case is remanded to Busan High Court. The plaintiff's appeal is dismissed.

The grounds of appeal are examined.

1. As to the defendant's appeal

A. The phrase "in relation to the performance of duties," which is the requirement for an employer's liability under Article 756 of the Civil Act, means that when an employee's unlawful act objectively appears to be an employee's business activity, an act of performing duties, or an act related thereto, it shall be deemed that such act was performed without considering subjective circumstances. Here, whether it is objectively related to the performance of duties of an employer should be determined by considering the degree related to the employee's original duties and illegal acts, and the degree of the employee's responsibility for causing risks to the employee and for failing to take preventive measures (see Supreme Court Decision 200Da6119, Mar. 9, 2001).

In addition, even if an employee's tort appears to fall within the scope of external execution of business, if the victim himself/herself knew, or was unable to know, due to gross negligence, 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 Decision 2004Da43886, Sept. 20, 2007, etc.). In this case, the gross negligence refers to a situation where it is deemed reasonable to view that the employee's act was not legitimate within his/her authority if the other party to the transaction had paid a little amount of attention, and that the employee's act was considerably in violation of the duty of care required by the general public, and that there is no need to protect the other party from the perspective of fairness (see Supreme Court Decision 2003Da36133, Feb. 25, 2005).

B. According to the reasoning of the lower judgment and the record, Nonparty 1: (a) conspired with Nonparty 2, who was 00,000,000 won for the above 70,000 won of the No. 9,000,000 won of the No. 9,000,000 won of the No. 9,000,000,000,000 won for the above 0,000 won of the No. 9,000,000,000 won of the 10,000,0000 won of the 70,000,000,000,000 won of the 9,000,0000,000 won of the 9,000,000,000 won of the 1,000,0000 won of the 1,000,000,000 won of the 1,00.

C. In light of the legal principles as seen earlier, goods handled by customers in large banks, namely, ordinary deposits or funds, etc., and the contents of the cash custody certificate of this case are not clear as to what kind of financial products the Plaintiff claims, and the cash custody certificate of this case does not indicate the interest rate as to the large amount of KRW 500 million, without the Plaintiff’s internal formalities such as real name verification, preparation of an application for deposit transactions, seal sealing, or signature, etc., it is difficult to view that the Plaintiff, even after being in the position of representative director at the time, was in violation of the contract, was in violation of the duty of care to receive more than the interest rate of commercial banks within a short period of 15 days, and it is difficult to view that the Plaintiff was in violation of the duty of care to receive more than the interest rate of commercial banks, and it is difficult to view that the Plaintiff was in violation of the duty of care to receive more than the interest rate of KRW 500,000,000,000,000 from the Plaintiff bank.

D. Nevertheless, the court below held that the Plaintiff’s issuance of KRW 500 million to Nonparty 1 and the receipt of the cash custody certificate of this case from the Plaintiff was related to Nonparty 1’s execution of business as the site manager of the Defendant bank, and that the Plaintiff had no intention or gross negligence in reliance on the Plaintiff’s belief, and recognized Defendant Bank’s employer liability. In so doing, the court below erred by misapprehending the legal principles on the relationship with the execution of business or the intent or gross negligence of the victim who is exempted from the employer liability, which is the requirement for the employer liability, and thereby adversely affected the conclusion of the judgment. The Defendant’

2. As to the Plaintiff’s appeal

According to the reasoning of the judgment of the court below, the court below rejected all the arguments that the contract for a deposit with the defendant bank was established, that the contract for a loan for consumption was established with the defendant bank, that the contract for a loan for consumption was established, and that the representation liability is established under Article 126 of the Civil Act with the defendant bank as to the receipt of KRW 50 million from the plaintiff. In light of the relevant legal principles and records, the judgment of the court below

Meanwhile, while the court below acknowledged the defendant's employer's liability and limited the defendant's liability to 40% by taking account of the plaintiff's negligence, the plaintiff's appeal is accepted by the defendant, and the decision of the court below that recognized the employer's liability against the defendant is reversed, this part of the ground of appeal is without merit.

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal by the Defendant, the part against the Defendant in the lower judgment is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The Plaintiff’s appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on

Justices Lee In-bok (Presiding Justice)