[1] Where an employer suffered losses due to a tort committed by an employee in relation to his/her performance of duties, the scope of a claim for damages or a claim for indemnity

[2] Whether an employee who intentionally committed an illegal act by taking advantage of a gap in the employer’s supervision is entitled to claim a reduction of his/her liability on the ground of the employer’s care (negative)

[1] In general, in cases where an employer has suffered direct loss due to a tort committed by an employee in relation to the performance of his/her duties or has suffered loss as a result of an employer's liability for damages to a third party, the employer may claim damages against the employee or exercise the right to indemnity only to the extent deemed reasonable under the good faith principle in light of the nature and scale of his/her business, status of facilities, details of his/her duties, working conditions and attitude of his/her employee, causes and characteristics of the harmful act, the degree of employer's consideration as to the prevention of harmful act or the distribution

[2] An employee who intentionally committed an unlawful act by taking advantage of a gap in the employer’s supervision is not allowed under the principle of good faith to assert the reduction of his/her own responsibility on the ground of his/her negligence. This is also the same even if the employer and his/her employee are in a relationship with the nominal lender.

[1] Articles 2 and 756(3) of the Civil Act / [2] Articles 2 and 756(3) of the Civil Act

[1] Supreme Court Decision 95Da52611 delivered on April 9, 1996 (Gong1996Sang, 1390) / [2] Supreme Court Decision 95Da30352 delivered on November 14, 1995 (Gong196Sang, 21)

Plaintiff

Defendant

Seoul Eastern District Court Decision 2008Na5969 Decided July 1, 2009

The part of the judgment below against the plaintiff is reversed, and that part of the case is remanded to the Panel Division of the Seoul East District Court.

The grounds of appeal are examined.

In general, in cases where an employer has suffered direct loss due to a tort committed by an employee in relation to the performance of his/her duties or a loss has been incurred as a result of the employee's liability for damages to a third party who is the victim, the employer can claim damages against the employee or exercise the right to indemnity (see, e.g., Supreme Court Decisions 95Da52611, Apr. 9, 1996; 95Da30352, Nov. 14, 1995; 95Da30352, Nov. 14, 1995; 2030Da373730, Jul. 10, 201; 2030Da373730, Jul. 30, 201).

According to the reasoning of the judgment below, the court below acknowledged the following facts as a whole. If the plaintiff's employee suffered losses as a result of embezzlement of 20,000 won from the purchaser while mediating the real estate sales contract, the defendant's 20 million won can exercise the right of indemnity against the defendant who is an employee. The court below held that the scope of indemnity can be determined by the employment evidence, i.e., the real estate owner's place of business where the plaintiff registered his/her business under the trade name of "○○ Licensed Real Estate Agent Office" is the real estate owner, and all of the parties who paid the above real estate rent or sub-paid it to the third party. ② The defendant did not have a real estate agent's qualification certificate and only the plaintiff possessed it, and the plaintiff's business operation of the ○○ Licensed Real Estate Agent's office was not limited to 10% of the amount of indemnity for the plaintiff's non-party 4's non-party 2's non-party 1's non-party 2's non-party 2's claim for indemnity.

The judgment of the court below on the exercise of the plaintiff's right to indemnity against the defendant is reasonable, and it is hard to accept the judgment of the court below on the restriction of the scope of the right to indemnity.

In light of the legal principles as seen earlier, even if the Plaintiff did not make efforts to properly manage and supervise the Defendant, it is not permissible under the principle of good faith to recognize the reduction of liability for the Defendant, who is an employee who intentionally embezzled by taking advantage of the difference in the Plaintiff’s supervision, the employer, as the employer, and even if the Plaintiff lent the Plaintiff’s qualification as the licensed real estate agent, it is not reasonable to consider the Plaintiff’s grounds for limiting the scope of the right to indemnity. In addition, even if the Plaintiff joined a mutual aid association of the Licensed Real Estate Agents Association as above and the Plaintiff’s claim for mutual aid money can only be made by the broker, the broker cannot be deemed to have the duty to explain the claim for mutual aid money to the broker, and if the intermediary contractor paid the mutual aid money to the parties to the transaction while acting as a broker, it cannot be deemed that the Plaintiff did not have any duty to explain the claim for mutual aid money under the principle of good faith, even if Nonparty 2 claimed for the payment of mutual aid money with the Plaintiff’s explanation, it cannot be deemed that the Plaintiff did not have any ground for restricting the Plaintiff’s damages.

Nevertheless, the court below accepted the defendant's written reduction order according to the decision of the court below and limited the plaintiff's scope of indemnity to 40% of the total amount of damages is erroneous in the misapprehension of legal principles as to the scope of indemnity between the employer and his employee, and failing to exhaust all necessary deliberations, which affected

Therefore, the part of the lower judgment against the Plaintiff is reversed, and that part of the case is remanded to the lower court for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Young-chul (Presiding Justice)