사용자책임의 성립요건에 관한 고찰 - 판례를 중심으로 -

Abstract

The problem of the employ’s liability, which is emerging as the main subject of legal dispute in various social areas, is provided in the article 756 of Civil law. For the employ’s liability to be valid, ① 'the existence of the relationship of employment' ② the employee should give damage 'in the execution of task work'. ③ the employee should give damage to the 3rd party ④ the employ should not be able to prove that he is exempt from the content of the article 756 of Civil law, which above 4 conditions should be satisfied. Precedent cases regarding the requirement for the employ’s liability are as follows: First, judgment of the employ’s liability is held by whether actual relationship of supervision existed, but it is appropriate to judge considering to the view of fair division of damage among the employer, victim, and the employee. Second, in regards to execution of task work, the standard for judgment suggested by the judicial case is the ‘Appearance Theory’. However, regarding actual judgment, in case of illegal action occurred during trade, judgment is held according to the theory above, but in case of accidental occurrence of illegal action, the appearance theory is not applied because its presumption cannot be satisfied, and it seems that judgment is held in the view of fairness of who takes the burden for the damage of the victim. Third, regarding the employee’s injury towards the 3rd party, the necessity of employee’s intention or negligence would be appropriate.