[1] In a case where the victim knew or was unaware of the fact that the employee's act does not constitute an employer's act of performing business affairs, whether the employer's liability is established (negative) and the meaning of "serious negligence" in this case

[2] The order of application of comparative negligence and profit deduction in the calculation of damages for tort

[3] Where part of a large amount of joint and several liability with different amounts is extinguished due to repayment, etc., the part which is first extinguished (=the part on which the single liability is

[1] Article 756 of the Civil Act / [2] Articles 393, 396, and 763 of the Civil Act / [3] Articles 413 and 477 of the Civil Act

[1] Supreme Court Decision 98Da39930 delivered on January 26, 199 (Gong1999Sang, 355) Supreme Court Decision 2002Da62029 delivered on February 11, 2003 (Gong2003Sang, 785) Supreme Court Decision 2006Da41471 Delivered on January 18, 2008 (Gong2008Sang, 231) / [2] Supreme Court Decision 73Da337 delivered on October 23, 1971 (Gong1981, 1390), Supreme Court Decision 80Da29129 delivered on May 8, 190 (Gong299390) / [2] Supreme Court Decision 2006Da413979 delivered on October 29, 205]

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

National Agricultural Cooperative Federation (Law Firm Kimhae & World, Attorneys Lee Won-won, Counsel for the plaintiff-appellant)

Busan High Court Decision 2009Na3425 decided October 7, 2009

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

The plaintiff and the defendant's grounds of appeal are also examined.

1. As to the occurrence of liability for damages and the amount of damages

Based on its adopted evidence, the court below acknowledged that, around February 6, 2006, the Plaintiff was liable to compensate the Plaintiff for damages incurred by Nonparty 1, an employee, due to a tort related to the execution of its business, such as loan work, and the Plaintiff was actually liable to compensate for damages incurred by Nonparty 3,60,000,000,000 won calculated by deducting 40,000 won from 3.6 billion won, while Nonparty 2 was unable to repay the above loan to the Plaintiff. However, Nonparty 3 was also liable to compensate the Plaintiff for damages incurred by Nonparty 1, an employee, as the Plaintiff actually paid the above loan to Nonparty 3,00,000 won, while Nonparty 3 did not repay the loan to the Plaintiff. The court below determined that the Defendant was liable to compensate the Plaintiff for damages incurred by Nonparty 1, 300,000,000 won after deducting 40,000 won from 360,000 won.

In light of the relevant legal principles and records, the judgment of the court below is just, and there is no error in the misapprehension of legal principles as to the requirements for establishment of employer liability or in the misapprehension of legal principles as to damages caused by illegal acts, as otherwise alleged in the

2. As to the victim’s intentional or gross negligence, and the offsetting ratio of negligence

Even in cases where a tort committed by an employee appears to fall within the scope of external execution of business affairs, if the victim himself/herself knew, or was unaware, due to gross negligence, that the act of the employee does not fall under the act of execution of business affairs by the supervisor in lieu of the employer or the employer, he/she cannot be held liable for the employer. In such cases, the gross negligence refers to the situation where it is deemed reasonable to deem that the other party to the transaction considerably violates the duty of care required by the general public by believing that the act of the employee would not have been lawfully performed within his/her authority, even though he/she could have known, that the other party to the transaction would not have been committed within his/her authority with due care (see Supreme Court Decision 98Da3930, Jan. 26, 199, etc.).

In addition, comparative negligence in tort is to be considered as the fault of the victim in determining the amount of compensation in accordance with the principle of equity or good faith. The scope of compensation is to be determined in consideration of all the circumstances such as the tortfeasor and the victim's intentional or negligent degree, and the occurrence of illegal act and the expansion of damages. However, the fact-finding or the ratio of comparative negligence is within the exclusive authority of a fact-finding court unless it is recognized that it is considerably unreasonable in light of the principle of equity (see Supreme Court Decision 98Da54397, Jun. 9, 200).

Based on the adopted evidence, the court below acknowledged the fact that the plaintiff did not properly verify whether the certificate of subrogation, etc. was made within the scope of the authority of Nonparty 1, and determined that the plaintiff's error did not amount to the defendant's intentional or gross negligence to the extent that the defendant's liability was exempted, but it was reasonable to limit the defendant's liability for damages caused by the tort by Nonparty 1, who is the employee of the defendant

In light of the above legal principles and records, the determination of the court below's fact-finding and the defendant's exemption from liability is just, and further, the recognition of the above ratio of negligence does not seem to be considerably unreasonable in light of the principle of equity. The plaintiff and the defendant's grounds of appeal as to this point are

3. As to the defendant's exemption from liability due to the assumption of the obligation by the non-party 3

The lower court determined that the Defendant’s liability for damages arising from the Defendant’s employer liability cannot be extinguished solely on the ground that Nonparty 3 took over Nonparty 2’s obligation for the instant loan to Nonparty 2, on the grounds that the instant loan and the Defendant’s liability for damages arising from the Defendant’s employer liability were independent of the separate causes.

In light of the relevant legal principles and records, the judgment of the court below is just, and there is no error in the misapprehension of legal principles as to the assumption of obligation, etc.

4. As to the defendant's exemption from liability due to the partial repayment by the non-party 3

In the event that the victim's profit occurs due to the occurrence of the loss, while the victim's negligence is concurrent with the occurrence of the loss, the above profit shall be deducted after offsetting the loss calculated first with the negligence (see Supreme Court Decision 73Da337, Oct. 23, 1973, etc.).

Meanwhile, the above damages liability due to the Defendant’s employer’s liability and the above loan obligation of Nonparty 2 are independent obligations arising out of different causes or obligations with the same economic purpose, which overlap with each other, if one of the other’s obligations is extinguished due to repayment, etc. In the so-called quasi-joint and several liability relationship, the other party’s obligation is extinguished if part of the other debt is extinguished due to repayment, etc., and in light of the purport of the quasi-joint and several liability system that seeks to secure the payment of the whole amount of the debt, the first extinguished part shall be deemed not to be the part jointly and severally liable with the other debtor, but the part jointly and severally liable with the other debtor (see, e.g., Supreme Court Decisions 9Da50521, Nov. 23, 199; 9Da67376, Mar. 14, 200).

As seen earlier, the lower court calculated the amount of damages to be paid by the Plaintiff as KRW 160 million by receiving a total of KRW 160 million from Nonparty 3 and obtained new benefits equivalent to the above amount of reimbursement, which is reasonable causal relation with Nonparty 1’s tort, which is the cause of the Defendant’s liability for damages arising from the Defendant’s employer liability. As such, the lower court determined the amount of damages to be paid by the Defendant as KRW 360,000 ( KRW 360,000 ( KRW 160,000) x 0.4) by offsetting the amount of damages to be paid by the Defendant after deducting the above amount of reimbursement payment from KRW 360,000 that the Defendant paid by the Plaintiff.

However, the above determination by the court below cannot be accepted for the following reasons in light of the legal principles as seen earlier.

As acknowledged by the court below, if an employee of the defendant prepared a written confirmation of payment that forged the name of the defendant's head of ○○○ Dong branch and presented and delivered it to the plaintiff, and the plaintiff believed it to have lent 400 million won to the non-party 2, and actually paid 3.6 million won after deducting interest, the plaintiff suffered damages immediately after the loan. If the defendant's negligence 40 million won as recognized by the court below is considered, the amount of damages that the defendant would compensate for to the plaintiff as the employer's liability is 1.44 million won (x 0.4 billion won). On the other hand, the non-party 2 separately bears the loan obligation equivalent to the principal of the loan calculated by taking account of the above 3.6 billion won as to the plaintiff's above 3.6 billion won as to the loan's damages liability, and the part that the non-party 2 did not individually become liable due to the non-party 2's non-party 2's non-party 2's damages liability is more than 1.6.4 billion won.

Nevertheless, among the judgment below that rendered a different judgment, the part against the Plaintiff as to the conjunctive claim is erroneous by misapprehending the legal principles as to comparative negligence and vicarious joint and several liability, which affected the conclusion of the judgment. The Plaintiff’s ground of appeal on this point

5. Conclusion

Therefore, the part of the lower judgment against the Plaintiff regarding the conjunctive claim is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The Defendant’s appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Young-ran (Presiding Justice)