대리권남용·무권대리로 인한 사용자책임 - 한국과 일본의 판례를 중심으로 -

Among the factors considered in examining whether an employer should be held responsible for abuse of agent’s authority or unauthorized representation, the factors “regarding the business duties” of an employer is considered under a rather extensive scope as the precedents and common views are based on the so-called “external theory”. Accordingly, in examining whether an employer should be held responsible, it is important to investigate whether there is any malice or gross negligence on the part of the victim so as to ascertain whether an act carried out by the employee is an abuse of agent’s authority or unauthorized representation. In the case of the precedents of Korea and Japan, since the 1990s, increasing number of Korean precedents recognize the gross negligence on the part of victims rather than the past. However, Korea tends to be more passive in acknowledging the gross negligence of the victims and less likely to recognize comparative negligence than Japan. As Korea no longer has an excessive demand for loans and as a result of the “Real Name Financial Transaction System” that has taken firm root, it has become easier to recognize gross negligence on the part of the victims in the case of abnormal financial transactions. Therefore, the courts need to become more active in recognizing the gross negligence of investors who have excessively taken part in abnormal transactions and need to increase the percentage of comparative negligence acknowledged. This author earnestly wishes for jurists to turn away from their former views that the courts are not likely to acknowledge gross negligence on the part of the victims due to a Supreme Court precedent that holds that a gross negligence is an “act almost alike intention” and hopes that the courts would cease from rendering decisions in that line.