(a) Where the contractor is liable for the damage caused by the illegal acts of a third party employed by the contractor;

(b) Whether the employer is liable where the contractor supervises the work of the contractor.

A. Where a contractor has reserved the right of detailed direction and supervision on the progress and method of the work of the contractor, the relationship between the contractor and the contractor does not substantially differ from the relationship between the employer and the employee, and the contractor cannot be exempted from the liability of the employer under Article 756 of the Civil Code for damages caused by the illegal act of a third party employed by the contractor.

B. The direction and supervision of a contractor, which serves as the basis for recognition of employers and employees, refers to the management of the contractor body by directly ordering, supervising, supervising, and encouraging the operation and execution of a specific construction site in the case of a construction work. The so-called supervision merely supervising the process by simply confirming whether the degree of the operation and execution of a construction work is being implemented in accordance with the design plan or specifications, does not constitute this. Thus, if the contractor is merely supervising the contractor’s construction work, the relationship between the two cannot be seen as the relationship between the employer and the employee.

Article 757 of the Civil Act, Article 756 of the Civil Act

Supreme Court Decision 83Meu153 Decided November 22, 1983

Plaintiff 1 and five others, Counsel for the plaintiff-appellant Kim Sang-hoon

[Judgment of the court below of this case]

Seoul High Court Decision 86Na3834 delivered on April 16, 1987

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Seoul High Court.

We examine the grounds of appeal.

1. The contractor is not liable to compensate for the damage inflicted upon a third party on the work, unless there is gross negligence on the contract or instruction (Article 757 of the Civil Act). However, where the contractor has reserved the right of specific direction and supervision on the work progress and method of the contractor, the relationship between the contractor and the contractor is substantially different from the relationship between the employer and the employee, and therefore, the contractor cannot be exempted from the employer liability under Article 756 of the Civil Act for the tort of a third party employed by the contractor, and this applies to the subcontract.

However, the direction and supervision of a contractor, which is the basis for the definition of an employer and an employee related person, refers to the management of a contractor by directly ordering, supervising, and encouraging the operation and execution of a specific construction site in the case of a construction work, and the so-called supervision merely supervising the process by simply confirming whether the degree of the operation and execution of a construction work is implemented in accordance with the design plan or specifications, does not constitute this. Thus, if the contractee merely supervises the construction work of the contractor, the relationship between the two cannot be seen as the relationship between the employer and the employee (see Supreme Court Decision 83Meu153, Nov. 22, 1983).

2. According to the judgment of the court below, the defendant company was awarded a contract for automatic storage installation works from the non-party 1 corporation to the non-party 5, and the non-party 1 supplied the non-party 1 with materials required for construction works among them. The above non-party 1, the subcontractor, had no experience in construction works, and the defendant company had a lot of experience in construction works, so it was directed and supervised by the non-party 2 to the non-party 1, the non-party 1, the subcontractor, who was employed by the non-party 5, to the non-party 1, who was employed by the non-party 1 to the above non-party 1, the non-party 1, the non-party 1, the subcontractor of the above construction work, and the non-party 1, the non-party 5, who was employed by the non-party 1, the non-party 1, the non-party 1, who was employed by the non-party 1, the non-party 1, the non-party 1, the non-party 1, the non-party 5, who was employed.

3. However, upon examining the evidence No. 1 (contract) adopted by the court below, the construction remuneration amount shall be KRW 5,640,00, and the construction period shall be from July 25, 85 to August 25, 198, and the subcontractor’s non-party 1 shall complete the construction work specifications and construction specifications using materials provided by the defendant company, a subcontractor, and obtain the inspection certificate of the inspector designated by the defendant company and the owner of the building. The construction cost shall be one year, and the construction cost shall be 10% of the construction cost shall be deposited with the defendant company. If the construction is delayed, compensation shall be paid in delay, and the construction cost shall be tested and inspected by each part of the subcontracted work, and it shall not be deemed that the contract terms shall have been in accord with the empirical rule, since the defendant company, a subcontractor, in the subcontracted work, should have been specifically instructed, supervised and supervised by the contractor, and it shall not be deemed that the construction work experience in the time of the original adjudication is inconsistent with the facts of the construction work.

In addition, if the testimony of the non-party 6 or non-party 3 of the first instance trial witness adopted by the court below is the purport of the testimony, whether the defendant company ordered the operation and execution of the specific construction work, or supervised the progress of the process in accordance with the specifications, and if the content of the testimony is a family electronic case, it would be easy to believe it in light of the content of the above evidence No. 1 or the testimony of the non-party 2 of the first instance trial witness.

4. Therefore, the court below, in order to impose an employer's liability on the defendant company, should have tried more detailedly to examine the direction and supervision relationship in the subcontract relationship of this case, but without doing so, recognized the defendant company's liability based on the evidence which is not inconsistent or reliable. The court below's decision cannot avoid criticism that the defendant company failed to conduct a hearing and violated the rules of evidence, and there is a good reason to point this out.

Therefore, the part of the judgment below against the defendant is reversed, and that part of the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Yoon Yoon-hee (Presiding Justice)