법인의 불법행위책임과 직무관련성 - 대법원 2023. 6. 1. 선고 2020다9268 판결 -

Regarding the meaning of “regarding the duties” in Article 35 (1) of the Civil Act on the liability of a juristic person for tort, this ruling confirmed the Supreme Court's existing position that any act by the representative of the juristic person constitutes an act in the performance of duties if it is objectively recognized as an act related to duties on the surface, and set forth new criteria to determine whether tort is related to duties, which should be judged considering the juristic person’s purposes and the relationship of the representative's ordinary duties with tort. The juristic person’s purposes determine the scope of the juristic person's rights and abilities, and the juristic person is dissolved depending on whether it fails to achieve the purposes. Any party, who doubts whether any act by the representative of the juristic person is performed as party of duties as a representative, may check the juristic person’s purposes from the juristic person’s incorporation registration and articles of association. As most of them are specified in a general and abstract way, however, it is unlikely that many cases use any deviation from the juristic person’s purposes as a basis for denying the relationship of the representative's duties with tort. Considering the relationship of the representative's ordinary duties with tort imposes some limitations on applying the theory of appearance to the relationship with tort. Unlike the relationship of the employee's original duties with tort in determining the relationship of office work execution under the employer’s liability with tort, it is considered to take account of the scope of the representative’s duties, which are much wider than those of the non-representative employee, and more trust from the other party in the validity of the juristic person's act. What exactly constitutes the representative's ordinary duties depends on the type, nature, and organizational structure of the juristic person. Regarding the act of embezzling school expenses from the university under the plaintiff through fraudulent construction by the person who was, in effect, a representative of the plaintiff juristic person and the defendant juristic persons, the Supreme Court held in this ruling that it was difficult to regard the defendants as liable for tort as it could not be considered an act related to the defendants' duties, contrary to what was decided by the High Court. The Supreme Court seemed to question about whether the above act of embezzlement was an act related to the duties of the plaintiff's representative instead of the defendants, and whether it was specifically justifiable to hold the defendant juristic persons liable along with the representative. The juristic person that uses a representative organization to expand its scope of activities and enjoy the subsequent benefits to achieve its purposes should also bear liability for tort committed by the representative organization during this process. Hopefully, this ruling gives rise to more diverse discussions on the liability of the juristic person for tort.