“중과실”을 “거의 고의에 가까운 것”으로 볼 것인가? -중과실의 광협을 조문 내지 영역별로 다르게 파악할 필요성-

“Negligence” is, in its nature, entirely different from the term “Intention.” Therefore, it would be inappropriate to regard gross negligence as an “act almost alike intention.” Moreover, if courts were to render rulings holding gross negligence as an “act almost alike intention,” such rulings may give the impression that the courts are unlikely to render rulings recognizing gross negligence. Considering that one of the core principles of a democratized economy is to prevent a director of a company from pocketing company property by way of self-dealing, the gross negligence of not knowing the board of directors had not approved such dealing between the director and the company should not be perceived as an “act almost alike intention.” There are only a few cases in Korea where the judges recognize the gross negligence of a third party who is involved in the above-mentioned self-dealing of a director (not knowing that the company’s board of directors had not approved such dealing). Therefore, it would be worthwhile to expand the scope of circumstances under which gross negligence is recognized. The Supreme Court of Korea Decision rendered as Judgment No. 2009Da36500 is considered as a model case, setting out the standards for recognition of gross negligence and providing necessary directions for the courts to follow. In order to recognize gross negligence at different degrees pursuant to each applicable legal provision or circumstances, there is a need to take into account the legislative intent of the legal provisions defining gross negligence and to examine the purpose of differentiating gross negligence from slight negligence. For this reason, this paper looks into a number of precedents that correspond to each legal provision or circumstances that recognize or does not recognize gross negligence. In the case of a person who is obligated to indemnify under the State Compensation Law, and an act carried out by a representative of a company (an act is not related to representative’s duties in the company) with regard to the injured party, gross negligence should be recognized by the court at its narrowest terms. In the case of a person who is obligated to compensate under the law concerning the responsibility for a fire that occurred by accident, and in the case of an assignee who acquires rights that are subject to a special contract prohibiting transfer of such rights, gross negligence should be recognized at less narrow terms than the foregoing. In the case of a third party that is involved in a self-dealing by a director of a company, such third party’s gross negligence should be recognized in wider terms than all of the above circumstances.