2018Da231406 Compensation (ar)

A Stock Company

B

Attorney Seo-young et al., Counsel for the defendant

Seoul High Court Decision 2017Na2035685 Decided April 18, 2018

September 28, 2018

The part of the lower judgment regarding the ancillary claim is reversed, and that part of the case is remanded to the Seoul High Court.

The grounds of appeal are examined.

1. After comprehensively taking account of the adopted evidence, the lower court dismissed the Plaintiff’s primary claim and partly accepted the conjunctive claim.

A. It is difficult to recognize that the Defendant concluded a contract with C, the Plaintiff’s seller, to purchase the instant Nowon-North Korea and performed such contract, C knew that it embezzled the instant Nowon-North Korea without the Plaintiff’s sales authority and the receipt authority of the price for goods.

Therefore, pursuant to Article 16 of the Commercial Act, the defendant is recognized as a sales member of the plaintiff, through C with the power of representation on the sale of the Nompt of this case, to purchase the Nompt of this case from the plaintiff and to pay the full amount of the price of the goods. Therefore, the plaintiff's primary claim

B. However, even if there was a circumstance to suspect the situation that C voluntarily ships out and sells the instant Nompt by unlawful means, the Defendant was negligent in the course of business in acquiring stolen goods by embezzlement of C without neglecting its confirmation. The Defendant’s act of acquiring the instant Nompt and embezzlement of C are objectively related to the act of acquisition of the instant Nompt and the act of embezzlement of C, and as long as the Plaintiff suffered damage from the relevant joint act, the Defendant is jointly and severally liable to compensate for the Plaintiff’s damage. Accordingly, the Defendant’s liability is limited to 70%, thereby

2. However, while dismissing the primary claim by deeming that C’s intentional act of embezzlement is not recognized, the lower court’s determination that recognized the Defendant’s primary liability for joint tort due to the Defendant’s acquisition of stolen property and accepted the conjunctive claim is difficult to accept for the following reasons.

A. The lower court determined that C was not aware of the Defendant’s bad faith with respect to the fact that the Defendant did not have the right to sell the instant Nompt and to receive the price of the goods. Under such factual recognition, the validity of the instant Nompt sales contract between the Plaintiff and the Defendant is recognized as being protected by the Defendant who trusted the external appearance of the transaction under

B. The defendant paid the price and received the price according to the conclusion and implementation of a sales contract in force under the Commercial Act, so long as the defendant's bad faith or gross negligence is not recognized, the defendant's act of receiving the trade of this case cannot be deemed to be an unlawful act solely on the ground that C was negligent in its confirmation despite the circumstance that C merely suspected of selling the trade of the trade of this case by unlawful means. The stolen under the Criminal Act refers to an article obtained as a result of an illegal act that may cause infringement on property rights, and the victim has the right to seek or right to claim a return. However, as seen earlier, as long as the validity of the sales contract of the trade of the trade of this case between the plaintiff and the defendant under Article 16 of the Commercial Act is recognized, the plaintiff cannot have the right to claim a return against the defendant on the ground that C embezzled embezzled the trade of the trade of this case. Accordingly, it is difficult to evaluate

D. 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 tort committed with respect to the infringement of the original owner’s rights, such as theft and age, and is objectively related to the principal offender’s tort (see, e.g., Supreme Court Decision 62Da579, Nov. 22, 1962). However, as seen earlier, the Defendant paid the price in accordance with lawful and effective sales contract and received the Nowon-North Korea. As such, the Defendant cannot be evaluated as an illegal act that makes it difficult or impossible to recover possession of the goods for which the acquisition of stolen goods or the Plaintiff’s right to request the return is recognized. The lower court’s precedent cited by the lower court is inappropriate. Accordingly, the lower court erred by misapprehending the legal doctrine on evaluation of illegality of the acquisition of Nowon-North Korea in this case and the establishment of joint tort, thereby adversely affecting the conclusion of the judgment. Therefore, the part of the lower judgment regarding the conjunctive claim is reversed, and remanded to the lower court.

Justices Kim Jae-young

Justices Park Sang-ok

Justices Cho Jae-sik in charge

Justices Noh Jeong-hee