(영문) 대법원 2013.6.28.선고 2011다49745 판결

The part of the judgment of the court below against the defendant regarding the conjunctive claim shall be reversed, and that part of the case shall be remanded to the Daejeon High Court.

All appeals by the plaintiffs are dismissed.

Reasons

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

1. Regarding the plaintiffs' grounds of appeal

A. According to the reasoning of the judgment below, the court below rejected all the allegation that the plaintiffs lent the money of this case to the defendant or to D representing the defendant, and even if D did not have legitimate authority to borrow each of the money of this case from the plaintiffs on behalf of the defendant, it shall be held liable to act as an expression agent under Article 125 or 126 of the Civil Code. In light of the relevant legal principles and records, the court below shall be justified and there is no violation of law of logic and experience and free evaluation of evidence, contrary to what is alleged in the grounds of appeal.

B. The remaining grounds of appeal by the plaintiffs are that the defendant's limitation of liability recognized by the court below is considerably unreasonable, but as long as the judgment of the court below which recognized the employer's liability against the defendant is reversed on the grounds as seen thereafter, this part of the grounds of appeal by the prior plaintiffs cannot be accepted without further need to determine.

2. As to the Defendant’s ground of appeal

A. According to the reasoning of the lower judgment and the record, the Plaintiff A sought from the first instance court to September 13, 2004 the amount of the claim KRW 77,200,000, and sought the return of the loan or the employer’s liability on September 13, 2004, which came to the lower court.

25. It is reasonable for the Plaintiff Company B to exchange the lawsuit seeking the return of loans or employer's liability, and to seek the return of loans or user's liability at the first instance court to 4.12, 1.5 million won, 3, 4.5 million won, 7,000 won on January 1, 2004, and 7.2 million won on March 29, 2004, and to seek the changed payment of a promissorysory note with the opinion of the lower court for the purpose of changing the amount of money to 7.2 billion won on September 29, 2003, 10, 7.00 won on September 30, 200, 3.5 million won on October 13, 2003, 3, 7.200, and 7.2,000 won on March 31, 2004, 200 or 7.7.2,00 won on each of the above grounds for appeal that the above change was justified.

B. Examining the reasoning of the judgment below in light of the relevant legal principles, the court below is just in holding that the claim for the return of the loan from the primary claimant of this case is premised on D with legitimate representation right to borrow money from the plaintiffs, while the claim for damages based on the primary employer liability is based on D's premise that D borrowed money from the plaintiffs without authority, and the two claims are inconsistent with each other. Thus, the court below did not err in the misapprehension of legal principles as to the requirements for the preliminary consolidation as alleged in the grounds of appeal

C. (1) With respect to the performance of an employee's business, which is the requirement for an employer's liability under Article 756 of the Civil Act, "an employee's tort shall be deemed to be an act of performing an employee's business without considering the employee's subjective circumstances when it appears that the employee's tort objectively constitutes an employer's business activity, an act of performing the business, or an act related thereto. Here, whether it is objectively related to the performance of an employee's business should be determined by considering the degree of the employee's inherent duty and tort, and the degree of the employee's responsibility for creating risks to the loss and lack of preventive measures. In addition, even in cases where an employee's tort falls within the scope of the employee's external performance of business, if the employee's act knew, or was unable to know, due to gross negligence, that the employee's act does not constitute the act of performing the employee's business on behalf of the employer or the employer, the employer cannot be held liable if the other party to the transaction knew, even though he could have known that it was not lawfully performed within his business authority.

(2) Comprehensively taking account of the evidence adopted, the court below acknowledged that D had been working as an attorney-at-law of the defendant who had been an attorney-at-law from February 2003 and had been working as the head of the defendant who had been a member of the National Assembly. The plaintiffs requested lending money through the name of the defendant's attorney-at-law and seal under the name of the defendant's attorney-at-law to pay debts arising from the defendant's political activities, etc.; D had the key of the defendant's attorney's office; D had the key of the defendant's attorney's office; D had the history of criminal punishment for violation of law; D had the history of carrying out business related to the management of the defendant's constituency and the main university at the time of borrowing the money in this case; the defendant visited the defendant's office at least once a month to the above office; and the defendant did not have any food with the defendant's attorney-at-law who had been working as the defendant's attorney-at-law to recover the money under the name of the defendant's attorney-at-law.

First, according to the facts acknowledged by the court below, D borrowed money from the plaintiffs, not only is it necessary to manage and operate the office of the defendant, but also is not related to the execution of the office of the defendant as the head of the office of the defendant. Next, the act of borrowing money by an attorney-at-law or a member of the National Assembly agreements with a private person (private person) who has no special relationship with him/her, such as management of office work or constituency, and borrowing money from the above office of the defendant is very unusual, and it is difficult to find that the above act of borrowing money was done in the way of "one hundred thousand won or KRW ,000,000,000,000,000 won for the payment of the price of the goods." Furthermore, according to the records, it is difficult to find that the defendant's act of borrowing money from the above office of the defendant as an assistant to the above office of the defendant's name and seal affixed with the borrowed money, and it is also difficult to find that the defendant's act of removing money from the above office of the defendant's attorney-at-law.

Therefore, even if D prepared a loan certificate in the name of the defendant or endorsed it to a promissory note using the defendant's name and seal to the plaintiffs, and even if it was done money transaction with the plaintiffs in the same way for a considerable period of time, it is difficult to view that D is objectively related to the execution of affairs as an attorney-at-law's office or a member of the National Assembly, and even if it is not so, the plaintiffs are aware that D prepared a loan certificate in the name of the defendant or endorsed it on a promissory note, or he paid attention to the fact that it does not fall within the scope of administrative affairs as a manager of an attorney-at-law or a member of the National Assembly, even though it was possible to know that D was actually aware that it was not within the scope of administrative affairs as a manager of an elector's office or local constituency for a member of the National Assembly, and there is sufficient room to deem that

Nevertheless, the lower court recognized the Defendant’s employer’s liability solely for the reasons indicated in its holding. In so doing, the lower court erred by misapprehending the legal doctrine on the victim’s intentional or gross negligence that is exempted from the employer’s liability, which is the requirement for the employer’s liability, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal

3. Conclusion

Therefore, without examining the Defendant’s remaining grounds of appeal, the part against the Defendant regarding the conjunctive claim of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The Plaintiffs’ appeals are all dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.