[1] Requirements for false or exaggerated advertisements of goods to constitute deception

[2] The meaning of “defensive assistance” under Article 760(3) of the Civil Act, and whether aiding and abetting a tort by negligence under the Civil Act is possible (affirmative)

[1] Article 110 of the Civil Act / [2] Article 760 (3) of the Civil Act

[1] Supreme Court Decision 2008Da1842 Decided March 16, 2009 (Gong2009Sang, 552), Supreme Court Decision 2012Da84417, 84424, 84431 (Gong2014Sang, 470) Decided January 23, 2014 / [2] Supreme Court Decision 98Da31264 Decided December 23, 1998 (Gong199Sang, 2222), Supreme Court Decision 2005Da32999 Decided June 14, 2007 (Gong207Ha, 1045)

As shown in the attached list of plaintiffs (LLC, Attorneys Yellow-san et al., Counsel for the plaintiff-appellant)

KF real estate trust Co., Ltd. and three others (Law Firm, Kim & Lee LLC et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2010Na21971 decided October 12, 2011

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

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the grounds of appeal by Defendant Hong-Wn Co., Ltd., Mai-N&C Co., Ltd., Mai-N&C Co., Ltd., and PabT

A. In a case where a false notice is made on important matters of transaction in the advertisement of the product in a manner that would be subject to criticism in light of the duty of good faith, it constitutes a deception. However, the mere exaggeration of the advertisement is accompanied by the false representation in the advertisement is lacking of deception as long as it may be acceptable in light of the general commercial practice and the good faith principle (see Supreme Court Decision 2008Da1842, Mar. 16, 2009, etc.).

B. Comprehensively taking account of the evidence adopted, the lower court determined as follows: ① the Democratic Industry Development Co., Ltd. (hereinafter referred to as the “ Democratic Industry Development”)’s 0 on May 29, 2007 and June 15, 2007 that it is necessary to establish a new 7th Embryp Co., Ltd. (hereinafter referred to as the “Defendant Mine P&C”)’s 7th Embryp Co., Ltd.’s 7th Embryp Co., Ltd.’s construction and distribution of the instant building on May 30, 207, indicated that the 7th Embryp Co., Ltd.’s construction and distribution of the instant building (“Defendant P&C”)’s 7th Embryp’s construction and the 7th Embryp’s construction and distribution of the instant building, and that it is possible to access the instant building by way of exclusive connection to the building, namely, 000,000 square meters.

C. However, in light of the above legal principles, we cannot accept the above judgment of the court below for the following reasons.

1) First, we examine the advertisement with the content of “in direct connection between the center of the Ilsan Park and the sloping bridge.”

According to the reasoning of the judgment below and the records, this part of the advertisement contains a sense of view in the shape where a bridge is established between the front square of the building of this case and the Ilsan Park. However, this part of the advertisement stated that "this view and photograph can be different from the actual image to help consumers understand it." In fact, there is a bridge between the front square of the building of this case and the Ilsan Park, and there is a entrance of a parking lot which is set up on the delivery of the front square of the building of this case through the overpasses and a few meters distance from the front square of the building of this case, and it is difficult to see that the road of this case can be seen as a parking lot, which is the central part of the Seosan Park, and it is difficult to see that the road of this case, such as the main square, and the distance between the front square of the building of this case and the Ilsan Park, which is the part of the general park of this case, with an access to the building of this case, such an internal park of this case, with the focus of the above 207 days square."

2) Next, we examine the following advertisements with the content that “the third floor crocf shop occupants are fixed.”

According to the reasoning of the judgment below and the record, the place where the phrase "the third floor cream shop shop occupants' determination" in this part of the advertisement is indicated is below the right side of the advertisement, and it is hard to see the scope of the commercial building to be sold, the overall organization of the commercial building, and the list of the business types to be recommended under the right side of the advertisement, and the proportion of the business types to be occupied in the entire advertisement is not large, but it is clearly distinguishable from the advertising phrases on the left side, and unlike the advertising phrases, the fact that the shop occupant's sales of the cmarket is not emphasized by a separate advertising phrase in other parts of the advertisement. The advertisement of November 8, 2007 is not the sale advertisement of the plaintiffs, but the lease advertisement that recruits the tenant as well as the tenant's recruitment. In light of the above, it is difficult to see that the sale contract of the 1st floor and the upper 2nd 3th mph mp is an important part of the advertisement, or it is difficult to see the plaintiffs's sales facility directly and publicly notified.

3) Finally, we examine the advertisement with the content that “satis fenck-type Pedencker and Quaker Quaker 2”.

According to the reasoning of the judgment below and the record, this part of the advertisement is "the special sale of cryp-type cryp-type cryp-type cryp-type cryp-type cryp-type cryp-type cryp-type cryp-type cryp-type cryp-type cryp-type cryp-type cryp-type cryp-type cryp-type cryp-type cryp-type cryp-type cryp-type cryp-type cryp-type cryp-type cryp-type cryp-type cryp-type cryp-type cryp-type cryp-type cryp-type cryp-type cryp-type cryp-type cryp-type cryp-type cryp-type c.

D. Nevertheless, the lower court determined that all of the above advertisements constituted deception. In so determining, the lower court erred by misapprehending the legal doctrine on the establishment of deception in the advertisement of goods, thereby adversely affecting the conclusion of the judgment. The ground of appeal assigning this error is with merit.

2. As to the ground of appeal by Defendant KB real estate trust company

A. Article 760(3) of the Civil Act provides that an aided or an assistant shall be deemed a collaborative act, and imposes liability on an aided or an assistant as a joint tortfeasor. Aiding or abetting refers to all direct or indirect acts facilitating a tort, and includes not only cases of commission but also cases of facilitating the commission of a tortfeasor due to omission by a person liable to act, who does not take all measures to prevent it. Aiding or abetting such tort shall be able to assist by negligence as an interpretation of the Civil Act that indicates negligence as a matter of principle for the purpose of compensating for damages, unlike the Criminal Act. In this case, the content of negligence refers to a violation of this duty on the premise that the aided or the aided or the aided or the aided or the aided has a duty of care to not assist the tort. In order to impose liability as a joint tortfeasor, there is a proximate causal relation between aiding and abetting and the aided or abetting person’s tort (see Supreme Court Decision 98Da31264, Dec. 23, 1998, etc.).

B. In full view of the admitted evidence, the lower court determined that: (a) Defendant K non-real estate trust company (hereinafter “Defendant K non-real estate trust”) entered into a fund management contract with the company on January 8, 2007, which is the fund manager of the building; (b) Defendant K non-real estate trust’s use of the name of the company for sale in lots and the name of the company for sale in lots in the name of the company for sale in lots and the name of the company for sale in lots should be indicated as the fund manager; and (c) Defendant K non-real estate trust’s use of the name of the company for sale in lots and the name of the company for sale in lots in the name of the company for sale in lots and the name of the company for sale in lots in the name of the company for sale in lots, which is the company for sale in lots; and (d) Defendant K-real estate trust’s use of the name of the company for sale in lots in the name of the company for sale in lots and the name of the company for sale in lots and the name of the company for sale.

C. However, in light of the above legal principles, we cannot accept the above judgment of the court below for the following reasons.

According to the reasoning of the judgment below and the records, Article 1 of the Act on the Agency for Fund Management provides that "the democratic industry development shall delegate the business of fund management, such as sales revenue management, to the defendant KB real estate trust for the smooth sale of this project, and the democratic industrial development necessary therefor, the defendant KB real estate trust, the Seoul Asset Management Co., Ltd., the Seoul Asset Management Co., Ltd., the Korean National Bank and the Korean Bank shall clearly define the roles, scope of business and responsibilities between the banks," and Article 3 (2) provides that "the role and the role of the defendant KB real estate trust shall be "the execution of the project cost, etc. through the receipt, management, execution, etc. of sales revenue and remaining loans from the fund management account," etc

In light of these facts, a fund management agency contract is a delegation contract that delegates the receipt and management of sales revenue and the execution of business funds to the Defendant KB real estate trust, which is the fund manager in relation to the instant sales business. The sales price received from the buyer is to prevent arbitrary withdrawal through democratic industrial development, thereby ensuring the smooth execution of the instant sales business, and securing the claim for loans to the lender. Thus, it cannot be said that the Defendant KB real estate trust bears the duty of care to manage and supervise the false sales promotional materials or advertisements that are irrelevant to the fund management business, which is the delegated business.

Specifically, even if Article 11(6) of the Fund Management Agency Business Agreement provides that the democratic industry development is subject to prior consent from the Defendant K non-real estate trust in using the trade name and altitude of the Defendant K non-real estate trust, so it is necessary to prevent the use of the trade name and altitude of the Defendant K non-real estate trust without permission or marking it in a name other than the fund manager, and it cannot be deemed that the provision imposes a duty of care to prevent the false sale advertisement of the democratic industry development on the Defendant K non-real estate trust.

In addition, Article 12 of the Fund Management Agency Contract provides for the method of management of the sales contract and the method of receipt of the sales proceeds under the above provision, and it is difficult to view that the defendant K non-real estate trust bears the duty of care to prevent the receipt of the sales proceeds in other accounts. In addition, it is difficult to say that the defendant K non-real estate trust has such duty of care in domestic K non-real estate trust, and even if the defendant K non-real estate trust violated its duty of care and uses the sales contract in which its own account was entered in the account column for the payment of the sales proceeds while selling part of the stores to other buyers than the plaintiffs in violation of its duty of care, it cannot be said that there was a facilitation of deception through fraudulent sales advertisement against the plaintiffs such as democratic industrial development, etc., so there is no proximate causal relation between aiding and abetting act and illegal act.

D. Nevertheless, under the premise that Defendant KB real estate trust has a duty of care to prevent the false sale advertisement of the development of democratic industry and the receipt of the sale price through an account other than the sales revenue management account, the lower court determined that Defendant KB real estate trust is also in the relationship of a joint tortfeasor with the development of democratic industry and the development of democratic industry. In so determining, the lower court erred by misapprehending the legal doctrine on the establishment of joint tort by aiding and abetting, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal on

3. Conclusion

Therefore, without examining the remaining grounds of appeal by the Defendants, the part of the judgment below against the Defendants is reversed, and that part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

[Attachment] List of Plaintiffs: omitted

Justices Yang Chang-soo (Presiding Justice)