Real decisions, read issue by issue.

The Supreme Court recognized the international judicial jurisdiction of Korean courts on the ground of substantial connection—being both the place where the damage occurred and the basis of living—and foreseeability, and held that Korean law could become the governing law. Agent Orange is a product that was mass-manufactured and used under supply contracts with the U.S. government, and the defendants, even though they manufactured it at the direction of the government, are manufacturers. Where the utility of a toxic substance is absent or minimal, there is a risk of harm from repeated exposure, and avoidance is difficult, a heightened duty to prevent harm arises, and manufacturing and sales in breach of that duty are, absent special circumstances, defective in design. Chloracne is a specific disease, and the finding of the court below of the probability of onset upon exposure was affirmed, but as for diabetes and other nonspecific diseases, it was held that probability cannot be recognized on the basis of statistical association alone. Among the defenses of extinctive prescription, some were regarded as abuse of rights on the ground of impediments up to registration and the exercise of rights within a reasonable period, and proportional causation was not accepted.

The court below held that not only chloracne but also diabetes and other nonspecific diseases were damage caused by exposure. The defendants and the plaintiffs each filed final appeals, and jurisdiction and governing law, defect and causation, and extinctive prescription are contested. The Supreme Court treated the portion concerning misapprehension of legal principles in respect of the causation of nonspecific diseases as subject to reversal. It reversed the remainder of the portions of the judgment of the court below in which the defendants lost, excluding the portion concerning the selected parties listed in Attached Table 3, remanded the case to Seoul High Court, and dismissed the plaintiffs' final appeal and the defendants' remaining final appeal.

The issues are organized in the order of international judicial jurisdiction and governing law, falling within product and manufacturer, defect and causation, and extinctive prescription. The reasoning of the court below was to recognize causation up to nonspecific diseases on the basis of the association in the report of the U.S. National Academy of Sciences and the probability of exposure. Against this, the application of Article 2 of the Act on Private International Law and Article 13, paragraph (1) of the former Act on Private International Law, Article 2, subparagraph 3 and Article 3, paragraph (1) of the Product Liability Act, Article 750 of the Civil Act and paragraphs (1) and (2) of Article 766 of the Civil Act is compared. As to international judicial jurisdiction, Supreme Court Decision 2002Da59788 decided January 27, 2005 is read together, and as to governing law, Supreme Court Decision 93Da18167 decided January 28, 1994.

This is examined again when the onset rates of an exposed group and a general group in comparison, individual exposure, and the conditions of onset again become an issue.

Following Supreme Court Decision 2007Du10440, the Supreme Court held that whether a leave order for business reasons has a justifiable reason under Article 23(1) of the Labour Standards Act is decided by comparing the business necessity of the order with the status and economic disadvantage the worker will suffer, by asking whether the criteria for selecting those placed on leave are rational, and by asking whether the good-faith procedures required in ordering the leave, including consultation with the union, were followed. It held that the appellate court was wrong to test the unpaid leave by the requirements for collective dismissal in Article 24 of that Act, and wrong to declare the selection irrational merely because the group was drawn from the phosphoric acid plant rather than the whole Ulsan plant, without weighing the circumstances in which the order was made and the consultation with the union. It then turned to the balance itself. Because the order followed a management rationalisation measure rather than any individual worker's circumstances, leave allowance under Article 46 of the same Act should in principle have been paid, yet the defendant made the leave unpaid without the workers' consent, and the six-month period was extended unilaterally twice. Measured against the degree of business necessity shown, the status and economic disadvantage was markedly great, so the unpaid leave order went beyond the bounds of the employer's legitimate personnel authority and was void; the appellate conclusion could stand, and the errors in its reasoning had no effect on the result.

Four plaintiffs, represented by counsel, sued the defendant company for confirmation that its unpaid leave order was void; the decision does not describe the first-instance outcome. The appellate court, the Busan High Court in its judgment of 25 March 2015 (2014Na3818), held the order invalid, reasoning that the unpaid leave formed part of a collective dismissal subject to Article 24 of the Labour Standards Act, and that selecting those affected only from the phosphoric acid plant was not rational or fair. The defendant appealed on four grounds. The Supreme Court ordered: 'The part of the appellate judgment concerning Plaintiff 3 is reversed, the first-instance judgment corresponding to that part is set aside, and Plaintiff 3's action is dismissed. The defendant's remaining appeals are all dismissed.' It directed that the total costs between Plaintiff 3 and the defendant be borne by each side separately, and the remaining appeal costs by the defendant, reaching the dismissal under Article 437 of the Civil Procedure Act on facts already established.

Start by classifying the leave: if it followed a management rationalisation measure, Article 46 of the Labour Standards Act and the question of leave allowance enter the balance at once. Then run the three factors from Supreme Court Decision 2007Du10440 in order — business necessity against disadvantage, rationality of the selection criteria, procedure with the union — and set the collective agreement's terms on duration and on ending employment beside the disadvantage side of the scale. Note that on the leave order itself the Supreme Court and the appellate court reached the same result of invalidity, so the point where they parted is the route: the appellate court used Article 24 and a bare selection fact, while the Supreme Court substituted a comprehensive balance and treated the lower court's reasoning errors as harmless. For each plaintiff separately, place the retirement date from the personnel rules against the date the appellate court closed oral argument, following the rule in Supreme Court Decision 2005Da32890, since that date decides whether any confirmation interest survived.

The record showing that the union in fact consented to the unpaid treatment, or a collective agreement clause capping the cumulative period of unpaid leave, would change the balance the Court struck. A later Supreme Court decision refining the test in Supreme Court Decision 2007Du10440 for rationalisation-related leave would require the weighing to be done again.

On the first ground the Supreme Court held that Article 51(1) of the National Tax Basic Act, and the former Article 51(1) before the amendment of 31 December 2007 by Act No. 8830, declare that where an overpaid amount already exists and its existence and extent are fixed, the State must return it immediately without waiting for a refund application, because justice and equity require it. It followed, citing Supreme Court Decision 2008Da29918, that such an overpayment may be recovered by the taxpayer in a civil action for restitution of unjust enrichment under Article 741 of the Civil Act, and the appellate court was right to reach the merits. On the second ground the Court held that Article 14(1) creates a substantive taxation relationship between the tax office and the real operator, but a separate relationship arises between the tax office and the nominee as the party to the assessment. Even where the real operator made the payment in the nominee's name or supplied the funds, the legal effect of payment belongs only to the nominee. The refund claimant is therefore the nominee, and the appellate court erred in awarding it to the non-party.

The defendant State assessed the plaintiff, the registered operator, with comprehensive income tax and value added tax on the OO Officetel business, then cancelled the assessments, producing an overpayment to be returned. The plaintiff sued for its return as unjust enrichment; a non-party, the actual operator, had in fact borne the payment. The appellate court, the Seoul Central District Court in its judgment of 27 August 2013 (2013Na11880), proceeded to the merits on the civil claim but held that the refund claimant is the real operator as the substantive taxpayer who actually paid, not the plaintiff. On the plaintiff's appeal the Supreme Court, with the unanimous opinion of the participating Justices, ordered: 'The appellate judgment is reversed and the case is remanded to the collegial panel of the Seoul Central District Court.' It omitted the remaining grounds of appeal.

First check whether the assessment against the person you represent was cancelled or held void, and whether the resulting overpayment's existence and extent are fixed, since that is what opens the civil route under Article 51(1) and Article 741 of the Civil Act. Then draw two columns: the relationship between the tax office and the real operator under Article 14(1), and the relationship between the tax office and the nominee as the addressee of the assessment. Set the payment records into the second column, because the Court held that who supplied the money does not move the legal effect of payment. The point where the appellate court and the Supreme Court parted is its premise that the substantive taxpayer under Article 14(1) is also the refund claimant; the Supreme Court rejected that premise.

An overpayment whose extent is not fixed would not open the civil restitution route under Article 51(1), since that route requires the existence and extent to be already fixed. A later decision addressing the nominee's claim where the nominee neither registered nor paid would change the reading on this card.

The Supreme Court held that a director must supervise, beyond the director's own assigned duties, to ensure that the representative director or the director in charge of the relevant work complies with statutes and regulations; that an outside director is no exception; and that, where there were grounds to suspect illegality and the director nonetheless let it go unaddressed, the director bears liability for compensation under Article 399 (1) of the Commercial Act. It took the view that, in a large-scale company, the content of the duty consists of grasping the applicable rules and regulations for work presenting major legal risks and of establishing and operating an internal control system that enables reporting and correction when a violation is discovered. It found no error in the court below's view that a code of ethics and training alone do not constitute control mechanisms, and that, on the basis of past sanctions and statements regarding practices, the violation arising from the absence of internal control was established. In limiting the amount of damages, regard may be had to the nature of the business, the circumstances of the violation, the degree of contribution and the presence or absence of gains, and flaws in the organization, and the determination of the ratio is respected as a finding of the court of fact unless it is manifestly contrary to equity.

The court below found that, even though the defendants were not involved in the individual bids, they breached the duty to supervise by failing to establish reporting and control systems, recognized liability for compensation, and then limited the amount by taking into account their positions and terms of service and whether they were standing directors. The defendants appealed on the grounds that the legal principles governing the duty to supervise were misapprehended and that there was error in the findings of fact, and the plaintiffs appealed on the ground that the limitation of liability was erroneous. The Supreme Court found that there was no violation of the principle of free evaluation of evidence in the recognition of Defendant 1's liability for letting the matter go unaddressed, and no misapprehension of legal principles in the finding that internal control was absent. It also regarded the court below's determination on the limitation of liability as falling within the authority of the court of fact since it was not manifestly contrary to equity, and dismissed all final appeals, ordering each party to bear its own costs of the final appeal.

The issues are organized in the following order: whether the representative director's liability for letting the matter go unaddressed is established; whether a breach of the duty to supervise arises from the former directors' failure to establish internal control; and the appropriateness of the limitation on the amount of damages. The defendants' assertions are that they neither participated in the individual bids nor received any report and therefore could not have known, and that they had a code of ethics and training in place; the court below viewed these as merely abstract guidelines and, in light of past sanctions and statements regarding practices, found that there were no control mechanisms. The provisions to be checked are Article 382 (2) and (3) and Article 399 (1) of the Commercial Act, and Article 396 and Article 681 of the Civil Act. Compare the legal principles set forth in the decisions in 2017Da222368 and 2007Da34746. Record comparisons are needed, including the periods of collusive conduct during each term of office, the distinction between standing and non-standing directors, the amounts of salary and whether any gains were obtained, and the point in time when the compliance monitoring body was newly established.

Revisit this when whether the control mechanisms operated is again disputed on the basis of records such as those of the bid rigging in the Four Major Rivers Project, the bid rigging in the Yeongju Dam project, and the bid rigging in the Incheon Subway project.

대법원은 민사소송법 제109조 제1항은 “소송을 대리한 변호사에게 당사자가 지급하였거나 지급할 보수는 대법원규칙이 정하는 금액의 범위 안에서 소송비용으로 인정한다.”라고 규정하고 있고, 변호사보수의 소송비용 산입에 관한 규칙 제3조 제1항은 “소송비용에 산입되는 변호사의 보수는 당사자가 보수계약에 의하여 지급한 또는 지급할 보수액의 범위 내에서 각 심급 단위로 소송목적의 값에 따라 별표의 기준에 의하여 산정한다.”라고 규정하고 있다. 소송비용에 산입되는 변호사의 보수에는 당사자가 보수계약에 의하여 현실적으로 지급한 것뿐만 아니라 사후에 지급하기로 약정한 것까지 포함되고, 제3자가 지급한 경우에도 당사자가 지급한 것과 동일하다고 볼 수 있는 사정이 인정되면 소송비용에 산입되는 변호사보수로 인정할 수 있다. 갑이 신탁계약의 수탁자인 을 주식회사를 상대로 소송을 제기하자, 신탁계약의 위탁자인 병 주식회사가 신탁계약에 따라 정 법무법인에 위 소송의 대리를 위임하면서 보수는 추후 소송비용액확정신청을 통하여 상대방으로부터 상환받을 변호사보수로 그 지급을 갈음하기로 약정하였는데, 위 소송에서 소송비용은 갑이 부담한다는 판결이 확정되자, 을 회사가 갑을 상대로 소송비용액확정신청을 한 사안에서, 병 회사가 신탁재산과 관련된 위 소송을 대리한 정 법인에 보수를 지급하기로 약정한 것은 병 회사와 소송당사자인 을 회사가 내부적으로 신탁재산 관련 소송의 수행책임과 비용부담 등을 정한 신탁계약에 따른 것이므로, 병 회사가 보수약정에 따라 정 법인에 지급하기로 한 변호사보수는 소송당사자인 을 회사가 지급하는 것과 동일하다고 볼 수 있어 소송비용으로 인정되어야 하고, 소송비용액확정절차에서 변호사보수의 소송비용 산입에 관한 규칙에 따라 결정되는 변호사보수는 보수약정에 따라 정 법인에 지급될 보수액으로서 갑이 을 회사에 상환하여야 할 소송비용에 산입된다고 보아야 하는데도, 을 회사가 지급하였거나 지급할 변호사보수가 없다는 이유로 갑이 을 회사에 상환하여야 할 소송비용액을 0원으로 확정한 원심판단에는 소송비용에 산입되는 변호사보수에 관한 법리오해 등 잘못이 있다고 한 사례.

원심은 소송비용액확정을 신청한 수탁자인 재항고인이 지급하였거나 지급할 변호사보수가 없다는 이유로 피신청인이 재항고인에게 상환할 소송비용액을 0원으로 확정했습니다. 대법원 주문은 "원심결정을 파기하고, 사건을 서울북부지방법원에 환송한다."라고 선고하였으며, 그 이유는 다음과 같다. 대법원은 위탁자인 해피소닉이 신탁계약에 따라 본안소송 대리를 위임하고 보수를 상대방에게서 상환받을 변호사보수로 갈음하기로 약정한 것은 소송당사자인 재항고인이 지급하는 것과 동일하다고 보았습니다. 원심 판단대로라면 실질적 소송행위가 있었는데도 피신청인이 상환의무를 면하는 불합리한 결과가 된다며 법리오해와 심리미진을 이유로 파기환송했습니다.

쟁점 검토는 민사소송법 제109조 제1항, 변호사보수의 소송비용 산입에 관한 규칙 제3조 제1항의 구성요건 분석, 원심 인정 사실의 포섭 적정성, 반대 해석의 성립 가능성 순서로 정리한다. 참조판례로 인용된 대법원 2005. 4. 30.자 2004마1055 결정의 기준과 본건 사실관계가 같은 점과 다른 점을 비교한다. 당사자 주장과 객관적 서증 사이의 정합성을 항목별로 점검한다.

민사소송법 제109조나 변호사보수의 소송비용 산입에 관한 규칙이 개정되거나 제3자 지급 보수의 산입 범위를 다룬 후속 결정이 나오면 이 판독을 다시 확인합니다.

혈액제제 제조업체는 순결한 혈액 확보와 감염 위험 제거를 위한 고도의 주의의무를 진다. 문진 등을 통한 위험군 배제 이행 여부에 대한 증명책임은 특별한 사정이 없으면 제조업체에 있다고 보았다. 투여 전 증상이 없고 투여 후 감염이 확인되며 오염의 상당한 가능성이 있으면 인과관계를 추정한다고 밝혔다. 노동능력상실률은 표에 항목이 없어도 관련 항목을 살펴 감정과 경험칙으로 정해야 하며 미흡한 원심 부분을 파기하였다. 첨부문서의 부작용 기재와 대안검사 사정을 들어 지시경고 위반과 대안검사 과실을 인정하지 않았다.

혈우병 환자들이 피고 녹십자와 피고 적십자와 피고 대한민국을 상대로 손해배상을 청구한 소송이다. 원심은 진단 기술 부재와 문진의 한계를 들어 1991년 4월경까지 감염된 원고들의 청구를 기각하고 노동능력 상실과 1991년 5월경 이후 제품의 인과관계를 부정하였다. 원고들과 피고 녹십자와 피고 적십자가 상고하여 주의의무와 인과관계 추정과 노동능력상실률과 소멸시효 등을 다투었다. 대법원은 문진 조치와 노동능력상실률과 인과관계 번복에 관한 원심 부분과 피고 녹십자 패소 부분 중 위자료 부분을 파기환송하고 나머지 상고를 기각하였다.

문진 이행 여부와 감염력 저감 가능성을 먼저 살피고 인과관계 추정 요건과 번복 사유를 차례로 검토한다. 원심은 진단 기술 부재와 장기간 노출을 들어 결함과 인과관계를 부정하였으나 대법원은 그 논리를 받아들이지 않았다. 민법 제750조와 민사소송법 제288조와 제조물 책임법 제2조 제2호 (다)목과 제3조를 확인한다. 대법원 96다7854 판결과 대법원 2008다16776 판결과 대법원 97다58491 판결을 대조하는 순서로 둔다.

원심이 문진 이행 여부와 감염력 저감 가능성을 다시 심리하면 판단을 다시 볼 수 있다.

대법원은 구 자본시장과 금융투자업에 관한 법률(2013. 5. 28. 법률 제11845호로 개정되기 전의 것, 이하 ‘구 자본시장법’이라 한다)은 금융투자상품을 ‘투자성’이 있는 권리로 규정하면서 이를 증권과 파생상품으로 구분하였을 뿐 거래주체나 장소, 적용 법규 등에 따라 범위를 한정하지 않았으므로, 구 자본시장법이 정하는 금융투자상품은 개별 조항에서 달리 정하지 않는 한 투자성을 가진 일정한 권리를 포괄하는 것이라고 볼 수 있다. 어느 행위가 금융투자상품의 거래와 관련하여 구 자본시장과 금융투자업에 관한 법률(2013. 5. 28. 법률 제11845호로 개정되기 전의 것) 제178조에서 금지하는 부정행위에 해당하는지 여부는, 금융투자상품의 구조와 거래방식 및 거래경위, 금융투자상품이 거래되는 시장의 특성, 금융투자상품으로부터 발생하는 투자자의 권리·의무 및 그 종료 시기, 투자자와 행위자의 관계, 행위 전후의 제반 사정 등을 종합적으로 고려하여 판단하여야 한다. 구 자본시장과 금융투자업에 관한 법률(2013. 5. 28. 법률 제11845호로 개정되기 전의 것, 이하 ‘구 자본시장법’이라 한다) 제178조에서 금지하는 금융투자상품의 거래와 관련한 부정행위에 해당하는 경우, 부정행위로 인하여 금융투자상품을 거래하게 된 투자자에게 손해가 발생하는 경우(이하 ‘제1유형’이라 한다)만이 아니라 부정행위와 상관없이 “부정행위와 관련된 해당 금융투자상품(이하 ‘해당 금융투자상품’이라 한다)”을 거래한 투자자에 대하여도 해당 금융투자상품의 구조·내용에 따라 부정행위로 인한 손해가 발생하는 경우(이하 ‘제2유형’이라 한다)가 있다.

원심은 원고들이 외국 회사로서 국외 장외시장에서 외국 금융회사들로부터 코스피200 콜옵션(만기일 2010. 11. 11., 행사가격 250)을 매수한 거래에 구 자본시장법이 적용되지 않는다는 이유로 제179조 청구를 기각했고, 피고들의 행위와 원고들 손해 사이의 상당인과관계를 부정하는 취지로 민법 제750조 청구도 배척했다. 대법원 주문은 "상고를 모두 기각한다. 상고비용은 원고들이 부담한다."라고 선고하였으며, 그 이유는 다음과 같다. 대법원은 금융투자상품이 거래주체나 장소, 적용 법규로 한정되지 않으므로 자본시장법이 적용되지 않는다는 원심 이유는 부적절하다고 했다. 그러나 피고 도이치은행과 도이치증권이 투기적 포지션을 구축한 뒤 장 마감 동시호가에 대량 매도해 코스피200 지수를 254.6포인트에서 247.51포인트로 떨어뜨린 행위가 부정행위에 해당할 여지가 있더라도, 피고들은 원고들 옵션거래의 상대방이 아니고 대립되는 이해관계에 관한 주장·증명도 없어 제179조 책임을 지지 않으며 민법상 상당인과관계도 인정하기 어렵다고 보아 결론을 유지하고 상고를 기각했다.

쟁점 검토는 구 자본시장과 금융투자업에 관한 법률(2013. 5. 28. 법률 제11845호로 개정되기 전의 것) 제3조, 제5조의 구성요건 분석, 원심 인정 사실의 포섭 적정성, 반대 해석의 성립 가능성 순서로 정리한다. 종전 대법원 판례의 법리와 본건의 구체적 사실관계가 갈리는 지점을 조문 문언에 비추어 비교한다. 당사자 주장과 객관적 서증 사이의 정합성을 항목별로 점검한다.

자본시장과 금융투자업에 관한 법률 제178조나 제179조가 개정되거나 손해배상 청구권자의 범위에 관한 대법원 판단이 바뀌면 다시 확인한다.

The Supreme Court finds the purchase price for a dissenting shareholder of a listed company in principle in the market stock price, while resting on the shareholder's reasonable expectations. The court is not bound by the formula in the Enforcement Decree, may reasonably select the reference date, and may investigate ex officio without being constrained by the parties' assertions, though it requires materials showing a high degree of probability and reliability. The purpose of the Enforcement Decree's reference to the day before the resolution date lies in securing a fair value unaffected by the merger, and the standard of the day before the resolution date is not imposed even where anticipation of the merger has already been reflected in the share price. In an intra-group merger, the point in time of the effect is examined strictly, and, treating the common expectations in the research and analysis materials as an objective outlook, the possibility of an effect is recognized from around the time Cheil Industries Co., Ltd. was listed. It upheld the conclusion of the court below based on December 17, 2014 as well-founded, but pointed out that the portion grounding the distortion of value merely on suspicions of an intention of poor performance or of the National Pension Service's intention to sell was inappropriate.

When the applicants filed their claim with the court of first instance on August 26, 2015, the court of first instance rendered a decision of 57,234 won per share on January 27, 2016. On May 30, 2016, the court below increased the amount to 66,602 won per share, taking December 17, 2014 as the reference date and applying by analogy the method prescribed in the Enforcement Decree. Both the applicants and the respondent filed reappeals, contesting the criteria for determining the price and the procedure for the ex officio investigation. The Supreme Court, regarding the conclusion of the court below as well-founded, dismissed all reappeals and ordered each party to bear its own costs.

Arrange the issues in the following order: confirmation of the market stock price principle, whether the formula in the Enforcement Decree is binding, selection of the reference date excluding the effect of the merger, and the ex officio investigation and the degree of proof. The respondent insisted on the standard of the day before the resolution date and raised procedural issues concerning materials collected ex officio, and the applicants likewise contested the determination of the price. Compare Article 165-5 (1) and (3) of the Financial Investment Services and Capital Markets Act, Article 176-7 (3) 1 of the Enforcement Decree of the Financial Investment Services and Capital Markets Act, and Article 11 and Article 86-2 of the Non-Contentious Case Procedure Act. Read together Supreme Court Decision 2008Ma264 dated October 13, 2011 and Supreme Court Judgment 2011Meu1116, 1123 pronounced on July 12, 2013, to confirm the exception to the market stock price and the legal principle of ex officio investigation.

In the records in which the common expectations in the research and analysis materials overlap with the trend of the share price decline, re-discern the point in time of the merger's effect.

대법원은 원천징수의무자가 실질과세 원칙에 따라 실질귀속자를 기준으로 원천징수하므로 소득의 실질귀속자에게 구 국세기본법 제45조의2 제1항과 제4항 제3호에 따른 경정청구권이 있다고 본다. 국외 등록에 그친 미국법인 특허권 등이 국내 제조와 판매 등에 쓰였어도 한미조세협약이 우선하므로 국내원천소득 해당 여부는 한미조세협약 제6조 제3항과 제14조 제4항에 따라 가려야 한다. 특허권의 속지주의상 특허실시권은 등록국 영역에서만 효력이 미치므로 국내 미등록 특허권 사용 대가는 국내원천소득으로 볼 수 없다고 판단하고 기타소득 주장도 받아들이지 않는다. 경정거부처분 취소소송의 소송물은 정당한 세액의 객관적 존부이므로 과세관청은 사실심 변론종결 때까지 동일성이 유지되는 범위에서 사유를 교환하고 변경할 수 있다.

삼성전자는 2012 사업연도부터 2015 사업연도까지 이 사건 사용료를 원고 라이센싱 지피 명의 계좌로 지급하고 원천징수분 법인세를 납부하였다. 원고들은 2016년 6월 29일 경정청구를 하였으나 피고는 답하지 않아 경정거부처분 취소의 소로 이어진다. 원심은 원고 코포레이션의 소를 각하하고 국내 미등록 특허권 사용료는 국내원천소득도 기타소득도 아니라고 보았으며 피고의 추가 주장은 심리대상이 아니라고 하였다. 원고 코포레이션과 피고가 상고하였고 대법원은 실질귀속자 심리 누락과 심리대상 오해를 이유로 원심판결을 파기하고 사건을 수원고등법원에 환송한다.

쟁점은 실질귀속자의 경정청구권 유무를 먼저 두고 국내 미등록 특허권 대가의 국내원천소득 해당 여부와 기타소득 해당 여부 및 심리대상 범위를 차례로 둔다. 원심 논리는 지급 명의 계좌를 기준으로 삼아 원고 코포레이션의 소를 각하하고 피고가 처분사유로 특정하지 않은 저작권과 노하우 주장은 다툴 수 없다는 취지에 있다. 구 국세기본법 제45조의2 제1항과 제4항 제3호, 구 법인세법 제93조 제8호와 제10호 차목, 구 국제조세조정에 관한 법률 제28조, 한미조세협약 제6조 제3항과 제14조 제4항의 문구를 대조한다. 대법원 2017년 12월 28일 선고 2017두59253 판결과 대법원 2014년 11월 27일 선고 2012두18356 판결을 놓고 실질귀속자와 속지주의 법리를 살핀다. 대법원 2002년 9월 24일 선고 2000두6657 판결을 놓고 처분 동일성이 유지되는 범위에서 사유 교환과 변경이 가능한지를 따지는 것이 중심이다.

이 사건 사용료에 저작권과 노하우 및 영업상 비밀 대가가 섞여 있음이 밝혀지면 다시 본다.

The Supreme Court held that even minimum resale price maintenance may be permitted as an exception where there is a justifiable reason, such as promoting inter-brand competition and increasing consumer welfare. Whether a justifiable reason exists is determined comprehensively in light of the revitalization of inter-brand competition, the promotion of non-price service competition, the diversification of product choice, and the ease of entry by new businesses, and the burden of proof lies with the business operator. The plaintiff's conduct of maintaining insurance drug prices lacks a justifiable reason even under the actual transaction price reimbursement system, and the support provided to hospitals, clinics, etc. falls outside Article 4 (1) of the Fair Competition Regulations and constitutes unjust inducement of customers. It noted, however, that in calculating the surcharge for unjust inducement of customers, where a promotional plan at the head-office level is carried out, the total sales amount of all trading partners for the drug in question must be treated as the relevant sales amount.

The court below viewed the plaintiff's maintenance of insurance drug prices and the prohibition on delivery to anyone other than designated suppliers as resale price maintenance and as conditional dealing subject to restraints. The court below found that the support provided to hospitals, clinics, etc. constituted unjust inducement of customers, and held that there was no departure from discretion in the surcharge for resale price maintenance calculated on the basis of 475,033,000,000 won. In the surcharge for inducement of customers, the court below recognized only the sales amount of each individual trading partner as the relevant sales amount, thereby rendering a judgment partially against the defendant. The plaintiff filed a final appeal contesting the justifiable reason and the discretion in imposing surcharges, among other matters, and the defendant filed a final appeal contesting the legal principle on the relevant sales amount; the Supreme Court dismissed the plaintiff's final appeal and, as to the portion in which the defendant lost, reversed and remanded to the Seoul High Court.

Arrange the issues in the following order: whether the conduct constitutes resale price maintenance and whether a justifiable reason exists, whether it constitutes inducement of customers, and the scope of the relevant sales amount. The plaintiff asserted permissibility and exemption from review on the basis of the actual transaction price reimbursement system and the safe harbor for market shares below 10 percent, among others, but neither the court below nor the Supreme Court accepted this. The court below regarded only the sales amounts of confirmed trading partners as the relevant sales amount for inducement of customers, but the Supreme Court pointed out that where a promotional plan at the head-office level is carried out, the total sales amount for the drug in question must be taken as the standard. Compare together Article 2, subparagraph 6 and Article 29 (1) of the former Monopoly Regulation and Fair Trade Act, and Article 23 (1) 3 and Article 24-2.

If the state of inter-brand competition is confirmed differently, re-examine the justifiable reason; if the degree of nationwide implementation of the promotional plan is confirmed differently, re-examine the scope of the relevant sales amount.

The Supreme Court views the duty of fair representation, which protects minority labor unions deprived of their independent right of bargaining, as extending not only to the contents of collective agreements but also to the collective bargaining process, and requiring the provision of necessary information and the collection of opinions. However, considering the dynamic nature of bargaining and the discretion of the representative, not every omission of procedure at each stage is immediately a violation, and if, taking the entire process together, the procedures on basic and important matters were not sufficiently followed and the discretion was exceeded, a violation may be recognized. It is held that the mere fact that members of the minority labor union were not given an equal opportunity to participate in the vote of the general meeting of members or the delegate council for or against the tentative agreement cannot be conclusively characterized as a procedural violation. Taking into account together that the representative has an independent right to conclude collective agreements, that the vote for or against is an internal procedure, and that there is no provision on related coordination procedures, it is difficult to see discrimination absent special circumstances. It is held that if, in breach of procedural duties, discrimination is made without reasonable grounds, this constitutes a tort infringing the procedural rights of the minority labor union, and absent special circumstances liability for solatium arises even though there is no pecuniary damage.

The defendant labor union, as the bargaining representative, bargained with the defendant company over the 2014 wages and collective agreement, wrote a written agreement on August 28, 2014, and gave notice on August 29, 2014. The plaintiff Sejong Hotel Labor Union claimed damages, and Plaintiff 2 and Plaintiff 3 made claims relating to the annual salary system, leading to the proceedings of the court below. The court below found that there was no defect in the consent to the provisions on the annual salary system, that the personnel evaluation sheets and the like were not rules of employment requiring separate consent, and that it was difficult to conclusively find that the defendant labor union breached its duty of fair representation. The plaintiffs filed a final appeal, and the Supreme Court dismissed the final appeals of Plaintiff 2 and Plaintiff 3, and, as to the portion of the judgment losing to the plaintiff Sejong Hotel Labor Union, reversed and remanded the case to Seoul Central District Court.

The issues should be arranged by first placing the scope of recognition of the procedural duty of fair representation and whether the provision of information and collection of opinions were omitted, and then, in order, the issue of participation in the resolution procedure of the delegate council and liability for solatium. The reasoning of the court below is to the effect that it is difficult to conclusively find that the defendant labor union breached its duty of fair representation and thereby infringed the right of collective bargaining and others. Compare the wording of Article 29-4 (1), Article 29 (2), Article 29-2, and Article 41 (1) of the Trade Union and Labor Relations Adjustment Act, Article 14-7 of the Enforcement Decree of the same Act, and Articles 750 and 751 of the Civil Act. With regard to Supreme Court Decision 2017Da218642 decided August 30, 2018, the center is to examine whether there was a deviation from discretion by taking the entire collective bargaining process together.

If the scope of discretion is contested by reference to the records of the provision of information over the entire process and the importance of the tentative agreement, the matter is examined again.

The Supreme Court places the promotion of competition and the enhancement of consumer welfare as the purpose of the Act and reads the meaning of Article 29 (1) of the former Monopoly Regulation and Fair Trade Act as lying in preventing restrictions on price competition at the distribution level. Even if competition within the relevant brand appears to be restricted, it is exceptionally permitted where there is a justifiable reason, such as invigorating competition between brands and thereby increasing consumer welfare. Whether there is a justifiable reason must be determined by taking together the degree of activation of competition between brands, whether competition in services other than price is promoted, whether diversification of product choice is achieved, and whether new entrants can secure distribution networks and enter the market with ease, and the burden of proof is borne by the business operator. Whether a restriction on transaction counterparties is likely to impede fair trade is determined by taking together the meaning and purpose of the conduct, its effects and influence, the characteristics of the goods and the market situation, and the content and degree of the status and the restriction. The effect on competition and whether means of unlawful purpose were used are also examined, and the lawfulness of the resale price maintenance and its competition-promoting effect are reviewed together.

The Fair Trade Commission issued a corrective order and other dispositions on the grounds of resale price maintenance and transactions imposing binding conditions on transaction counterparties, and the plaintiff contested them, leading to the proceedings of the court below. The court below found that free competition among dealers was impeded by citing the distribution of price lists, verbal notices, and coercion through disadvantages. The court below did not examine the assertion of justifiable reason, on the view that minimum resale price maintenance is unlawful if the requirements are met, and also regarded the restriction on transaction counterparties as unlawful as an unlawful means of maintenance. The plaintiff filed a final appeal contesting justifiable reason and the safety zone, and the Supreme Court reversed the judgment of the court below and remanded the case to Seoul High Court on the grounds of failure to examine fully and misapprehension of the legal principle.

The issues need to be organized in the order of first placing whether there is a justifiable reason for minimum resale price maintenance, and next placing whether the restriction on transaction counterparties is likely to impede fair trade. The reasoning of the court below is to the effect that, since the requirements being met makes the conduct unlawful, there is no need to examine the assertions of strengthening non-price competition and promoting competition between brands. Compare the requirements of Article 29 (1) and Article 23 (1) subparagraph 5 of the former Monopoly Regulation and Fair Trade Act, and examine as far as item na of subparagraph 7 of Table 1 of Article 36 (1) of the former Enforcement Decree of the same Act. In light of the legal principles on justifiable reason and burden of proof in Supreme Court Decision 2009Du9543 decided November 25, 2010, whether the court below afforded an opportunity to prove is at the center of the review.

If the business operator submits materials with which to prove a justifiable reason and disputes the state of competition between brands, the matter is examined again.

중재판정부 구성과 절차가 합의에 어긋나도 절차적 권리 침해가 현저하여 용인할 수 없을 때만 승인집행을 거부할 수 있다고 보았다. 판정 성립 후 청구이의 사유가 생겨 집행을 허용함이 기본 원리에 반하면 뉴욕협약 제5조 제2항 (b)호로 거부할 수 있다는 입장이다. 실체관계 배치나 인식만으로 거부할 수는 없고 권리남용이나 공서양속 위반이면 거부할 수 있다고 보았다. 민사소송법상 재심사유에 해당하는 사유가 있어 집행이 현저히 부당하고 수인이 정의에 반함이 명백하면 청구이의 사유가 된다는 기준이다. 이 사건 구성과 자산유동화법 주장은 받아들이지 않고 법인세 감액 부분은 권리남용으로 보아 미화 32,601,248달러 부분을 파기환송하였다.

원심은 중재판정부 구성이 국제상업회의소 중재규칙에 따랐고 자산유동화법 위반과 공공질서 위반이 없다고 보았다. 세금 환급금은 청산배당으로 나눌 문제라 청구이의 사유가 없다고 보고 집행을 허가한 판단이다. 피고는 구성과 공공질서와 청구이의를 다투고 원고는 지연손해금을 다투어 상고하였다. 대법원은 미화 32,601,248달러 피고 패소 부분을 파기환송하고 원고 상고와 피고 나머지 상고를 기각한 결론이다.

쟁점은 중재판정부 구성과 자산유동화법과 판정 후 감액의 청구이의 해당 여부와 지연손해금 순서이다. 원심은 선정방식 지정과 최종 권위와 중재규칙에 따르기로 한 합의를 들어 구성 하자가 없다고 보았다. 원심은 환급금 청산배당 논리로 세금 환급 사정만으로는 청구이의 사유가 없다고 판단하였다. 대법원은 중재판정금에 세금 23,722,822,690원의 50%인 11,861,411,345원이 포함되었는데 감액으로 실체에 어긋나 권리남용 등에 이른다고 지적하였다. 뉴욕협약 제5조 제1항 (d)호와 제5조 제2항 (b)호와 민사집행법 제26조 제1항과 중재법 제37조 제1항과 2017다238837과 2001다20134와 2004다8814를 본다.

판정 기초 행정처분이 판정 후 다른 재판이나 처분으로 바뀐 폭과 집행 영향이 드러날 때 판단을 다시 본다.

The Supreme Court treats the date on which the false statements in the business report came to be known as the point of realistic recognition, holding that if an ordinary person could recognize them, then absent special circumstances the person is deemed to have recognized them. Persons who may claim under Article 186-5 and Article 14 of the former Securities and Exchange Act include not only acquirers in the issuance market but also acquirers in the distribution market. The company must prove that the acquirer knew of the false statements at the time of acquisition and that there is no causation as to the damage, and it was held that, on the results of the event study in this case alone, the nonexistence of causation for the entire damage was not proved. There was no error in the court below's determination treating the common share price of 1,960 won and the preferred share price of 1,710 won, formed after 10 trading days had elapsed from the public disclosure, as normal stock prices and treating the amount obtained by deducting these from the purchase price as the amount of damage. The debts concerning property contributed under Article 530-9(2) of the Commercial Act mean debts concerning the contributed business and debts related to the active assets necessary for that business, and the court below's determination that the damages claim in this case does not fall within these was approved.

The court below held that the window dressing could be known only at the time of the full-fledged report and that the filing of the action observed the exclusion period, and then recognized the claim of the acquirer in the distribution market and causation and calculated the amount of damage. The court below held that the damages obligation was not a debt concerning property contributed under the split plan, that the plaintiffs were not creditors known to it, and that there was no abuse of separate personality, and thus rejected the liability of the newly established company, and rejected the alternative Civil Act claim for insufficient proof of causation. The plaintiffs asserted a misapprehension of legal principles concerning debt assumption and creditor protection, and Defendant 5 contested on the ground of a misapprehension of legal principles concerning the exclusion period and causation. The Supreme Court approved the determination on limitation of liability and, deeming Defendant 6's appeal dismissed for failure to submit a written reason, dismissed all appeals and determined the bearing of costs.

The issues are organized in the following order: whether the exclusion period was observed, the standing of the acquirer in the distribution market, causation between acquisition and damage and calculation of the amount of damage, and the scope of assumption by the newly established company in the split. Defendant 5's assertion was that recognition could have been made before the report and that the event study showed no effect on the stock price, while the court below held that there was no evidence establishing recognition before the full-fledged report and that the nonexistence of causation was not proved on the results of the event study alone. The provisions to be confirmed are Article 14(1) and Article 15(1) and (2), Article 16 and Article 186-5 of the former Securities and Exchange Act, and Article 530-9(1) and (2) of the Commercial Act. Compare the legal principles stated in Decision 2008Da31751, Decisions 2006Da16758 and 16765, and Decision 2008Da74963. A comparison is needed of the entries in the substantive shareholder register, the wording of Article 9 and Article 10(2), subparagraph 1 of the split plan, and the circumstances of the agreement on the capital ratio.

Examine this when the causation between the normal stock price and the difference in the disposal price is again at issue in the sale or holding records after the normal stock price was formed following the public disclosure.

An right to demand purchase of shares, which forms a sales contract upon the claim of one party, is a formative right. The exercise period of a claim that is a formative right was treated as an exclusion period. Where there is an agreement, the position is that the right is extinguished unless it is exercised within that period. Where there is no agreement, consideration is given to the nature of the contract, the motive and purpose of its grant, and the exercise period of the claim thereby created. A claim under a commercial investment contract was deemed to be 5 years by analogy to Article 64 of the Commercial Act, and it was determined that, absent special circumstances, the period runs from the time of non-performance; in this case, it was deemed extinguished, 5 years having elapsed from the time of the breach.

The court below held the repurchase undertaking in the letter of undertaking void as a violation of Article 341 of the former Commercial Act and did not accept the proof of deception. The court below held that the claim under Article 27 of the Acquisition Agreement was extinguished, 5 years having elapsed from the time of the breach. The court below determined that the Article 28 claim was barred by the 5-year commercial extinctive prescription running from the date of the breach, and the Supreme Court held that the claim to be preserved by the provisional attachment was a separate claim and therefore had no tolling effect. The plaintiff appealed on grounds of misapprehension of legal principles, failure to exhaust deliberations, and omission of adjudication, but the Supreme Court dismissed all appeals.

The issues, in order, are the validity of the repurchase undertaking, whether a tort occurred, the existence of the Article 27 claim, and the Article 28 prescription. The court below, citing the risk to capital integrity, held the repurchase undertaking void and found the proof of deception insufficient. The Supreme Court held that the right to demand purchase of shares had been extinguished by the lapse of 5 years and that the provisional attachment concerned a separate claim and therefore had no tolling effect. The appellant contended that there was a misapprehension of legal principles regarding the restriction on the acquisition of treasury shares and the period for formative rights, and that there was omission of adjudication regarding the commencement and tolling of prescription. Confirm Civil Act Article 105, Article 564, Commercial Act Article 335, Article 64, and Article 341 of the former Commercial Act, and note that there are no Reference Cases.

Where the Acquisition Agreement separately contains an agreement on an exercise period, examine whether a period other than 5 years applies.

The Supreme Court held that the purchase provided for in Article 2 of UCP 600 (6th Revision of the Uniform Customs and Practice for Documentary Credits) occurs where the nominated bank gives actual consideration or assumes a definitive payment obligation before the reimbursement date. The purchase agreement entered into upon opening the back-to-back letter of credit is not a promise to make definitive payment on a specified date and therefore does not constitute an unconditional assumption of liability. In an irrevocable documentary letter of credit payable at sight, the purchase price must be paid before the elapse of five banking business days counting from the day after the day the documents reached the issuing bank. Where there is no valid purchase, the issuing bank may assert against the presenting bank all grounds available against the beneficiary, and thus may refuse payment on the ground of a fraudulent transaction.

The court below found that the agreement between the plaintiff and United Metal was not an unconditional payment obligation and that payment made after the elapse of five banking business days counting from the day after the documents arrived could not be regarded as a purchase. The court below found that Steel M and United Metal conspired in a fraudulent transaction to make an unsecured claim through the removal of the scrap metal and the use of bills of lading for customs clearance, and recognized the defendants' refusal of payment. The plaintiff contested on grounds of misapprehension of legal principles as to purchase and misapprehension of legal principles as to the fraud exception. The Supreme Court, finding no misapprehension of legal principles in the court below's determinations regarding purchase and fraudulent claims, dismissed all final appeals and ordered that the costs of the appeal be borne by the plaintiff.

The issues are organized in the following order: whether the agreement upon opening the back-to-back letter of credit constitutes a purchase, whether the timing of payment was observed, and whether payment could be refused on the ground of a fraudulent transaction. The plaintiff's assertion was that it purchased upon determining the required documents and promised indemnity and payment, while the court below found that there was no definitive payment on a specified date and that the time limit had also passed. Article 2, Article 14(b), and Article 7 of UCP 600 (6th Revision of the Uniform Customs and Practice for Documentary Credits) are the provisions to be checked. Comparing the legal principles against Supreme Court Decision 2009Da93817, Supreme Court Decision 2000Da60296, and Supreme Court Decision 2001Da68266, and comparing the date the documents arrived, the date of payment, and the circumstances of the bills of lading, is necessary.

Revisit the question when the assumption of a definitive payment obligation before the reimbursement date and compliance with the five banking business days are again at issue.

The Supreme Court held that, under the principle of taxation based on substance in Article 14 (1) of the Framework Act on National Taxes, where the nominal holder lacks the capacity to control and manage, a separate person exercises actual control and management, and that discrepancy arises from a tax avoidance purpose, the income is attributed to that person exercising control and management. Unless there is a special provision excluding it, this principle applies equally to the interpretation and application of tax conventions, which have the same effect as statutes. Articles 6 (3) and 14 (4) of the Korea-U.S. Tax Convention, applying the territoriality principle, define as domestic-source income only the income received as consideration for the right to use a patent where the patent right has been registered in Korea. Income related to a patent right registered only abroad and not registered in Korea cannot constitute consideration for use and therefore cannot be regarded as domestic-source income.

The court below held that IV IL performed only a formal role, that the beneficial owner of the 2010 royalties was IV US, and that the discrepancy arose from a tax avoidance purpose so that the Korea-Ireland Tax Convention could not be applied. The court below held that, of the royalties substantively attributed, only the royalties for patent rights registered in Korea constituted domestic-source income, and that the disposition as to the remainder was unlawful. The plaintiff argued misapprehension of legal principles as to the determination of the beneficial owner and the burden of proof, and the defendant argued misapprehension of legal principles as to the determination of domestic-source income for the consideration for unregistered patents, and each filed a final appeal. On December 27, 2018, the Supreme Court dismissed both final appeals and pronounced an order that each party shall bear its own costs of the appeal.

Organize the issues in the following order: determination of the beneficial owner, then priority of the tax convention, then whether the income constitutes domestic-source income. The plaintiff side contested the criteria for distinguishing the formal party from substantive attribution and the burden of proof, and the defendant side argued that domestic use alone makes the income domestic-source income, but the court below did not accept this, citing the structure of control and management and the country-of-registration criterion. Compare in turn Article 14 (1) of the Framework Act on National Taxes, Article 93, subparagraph 9 of the former Corporate Tax Act, Article 28 of the Act on International Adjustment of Taxes, and Articles 6 (3) and 14 (4) of the Korea-U.S. Tax Convention. The criteria for substantive attribution and territoriality in Supreme Court Decision 2010Du25466 decided October 25, 2012 and Supreme Court Decision 2012Du18356 decided November 27, 2014 need to be read together.

If the nominal holder's independent capacity for control and management, or a purpose other than tax avoidance, is confirmed on the records, revisit the determination of substantive attribution.

An obligation of an officer arising from the performance of duties is not an obligation of result requiring prevention of the outcome, but an obligation to fulfill a duty of care. Where there is adequate information, appropriate procedure, best interest, and good faith, and no manifest unreasonableness, it was regarded as falling within discretion. The mere result of non-recovery cannot establish or presume a breach of the duty of care. Because project finance loans depend on future cash flows, the review of business viability was regarded as the core. This is a case in which the determination of the court below finding no breach of the duty of care as to the loans to Companies A, C, and D was affirmed, while, as to the loan to Company B, there was reversal and remand because the hearing on the site dispute was insufficient.

The court below found no manifest unreasonableness in the loans to Companies A, C, and D, and did not recognize a breach of the duty of care. The court below also held that as to the loan to Company B, despite the precautions taken, the evidence was insufficient to establish a breach. The plaintiff filed a final appeal on grounds including violation of the rules of evidence (rules of fact-finding) and misapprehension of legal principles. The Supreme Court reached the conclusion of reversal and remand as to the portion concerning the losing decision on the 5 loans totaling 8.4 billion won, and dismissing the remainder.

The issues are, in order, the standard of the duty of care, whether the outcome gives rise to a presumption, project finance screening, and the application to each loan. The court below found no manifest unreasonableness on the basis of the collateral and guarantees, the repayment plan of the first-tier financial institutions, the bridge loan structure, and the absence of supervisory findings. The Supreme Court has, in effect, required renewed examination of the site dispute, the expiry of the memorandum of understanding, the shortage of funds, and the inadequacy of collateral in the loan to Company B. It has been pointed out that there may also be room to recognize fault in negligent loan management at the time of the extension. Verify Article 382, paragraph (2) and Article 399 of the Commercial Act and Article 681 of the Civil Act, and examine 2001Da52407, 2004Da41651 and 41668, 2006Da33609, 96Da30465, and 2006Da39935.

Revisit the determination when review records concerning legal disputes over the project site, financial capacity, and collateral are further revealed. The management records at the time of the extension are material for the determination of fault.

The Supreme Court views a clan association as a naturally arising lineage group whose purposes are the protection of burial mounds, ancestral rites, and fellowship, and sets up a structure under which adult descendants who share the same surname and family origin become clan members automatically, without distinction as to sex. Because under Supreme Court Decision 2002Da1178, an en banc judgment, the customary law limiting membership to men has lost its effect, a custom excluding persons on the ground of maternal lineage alone cannot be regarded as law. A change made under Article 781, paragraph (6) of the Civil Act must also be treated the same as the case in which a person followed the mother's surname and family origin from birth, in light of equality under the Constitution and the purpose of abolishing the household-head system. Since the plaintiff in this case is an adult who changed to the mother's surname and family origin with the permission of the court, he or she is recognized as a member of the defendant clan association.

The court below granted the claim, finding that the adult plaintiff who changed to the mother's surname and family origin with the permission of the court is a member of the defendant clan association. The defendant's grounds for final appeal assert a misapprehension of legal principles concerning freedom of association, customary law, and the principle of following the father's surname under the Civil Act. The Supreme Court found no misapprehension of legal principles in the judgment of the court below, dismissed the final appeal, and ordered the defendant to bear the costs of the final appeal.

The issues are organized in the order of the effect of customary law on clan membership and the effect of a change of surname and family origin. Since the defendant's side contested the plaintiff's membership in the clan association by invoking the right to the pursuit of happiness, freedom of association, customary law, and the principle of following the father's surname, it is necessary to compare each argument against the Constitution and the amendments to the Civil Act. Article 1, Article 31, and Article 781, paragraphs (1) and (6) of the Civil Act, and Article 11, paragraph (1) and Article 36, paragraph (1) of the Constitution become subjects of verification. Examine the criteria of Supreme Court Decision 2002Da1178, an en banc judgment, together with the purposes of the clan association and the structure of adoption rites and withdrawal.

Reexamine whether there is any reason to treat differently the case in which the mother's surname and family origin were followed from birth and the case of a change made after birth.

The Supreme Court affirmed the determination of the court below treating each individual support act carried out under the head office promotional plan as one comprehensive unfair customer inducement conduct under Article 23, paragraph (1), subparagraph 3 of the former Monopoly Regulation and Fair Trade Act. Each individual support act falls under the unfair or excessive benefit under Article 36, paragraph (1), Table 1, subparagraph 4, item (a) of the former Enforcement Decree, and, given the structure of prescriptions, there is a possibility of attracting customers from competing businesses. Because the confirmed acts of providing benefits were acts of implementing a promotional plan at the head office level directed at business partners generally, the relevant sales amount is not limited to the sales of specifically identified counterparties but is taken as the total sales of all business partners dealing in the pharmaceutical products in question. The designation of 330 won per bottle for Bacchus-type products constitutes minimum resale price maintenance conduct under Article 29, paragraph (1) of the former Monopoly Regulation and Fair Trade Act; the burden of proving justifiable grounds rests on the business operator, and there is no material recognizing such grounds.

The court below treated the individual support acts under the promotional plan as one comprehensive unfair customer inducement conduct and determined the total sales of all business partners as the relevant sales amount. The court below regarded the agreement designating 330 won per bottle for Bacchus-type products as minimum resale price maintenance conduct rather than consignment sales, and found no material recognizing justifiable grounds. The plaintiff filed a final appeal, contesting that there was a misapprehension of legal principles regarding the requirements for establishment, the calculation of the administrative fine, and the restriction of competition, etc., but on December 23, 2010, the Supreme Court dismissed the final appeal and ordered the plaintiff to bear the costs of the final appeal.

In the order of the issues, examine in turn the requirements for establishing customer inducement, the relevant sales amount and the period of violation, and the establishment of minimum price maintenance and justifiable grounds. The plaintiff's side contested not the promotional plan itself but the manner of specifying individual acts and the scope of sales, and asserted consignment sales and the absence of any restriction of competition, and the court below did not accept these on the basis of the structure of head office implementation acts and the contract terms. Compare Article 23, paragraph (1), subparagraph 3 and Article 29, paragraph (1), and Article 2, subparagraph 6 of the former Monopoly Regulation and Fair Trade Act, and Article 36, paragraph (1), Table 1, subparagraph 4, item (a) of the former Enforcement Decree. It is necessary to examine together the framework for determining justifiable grounds and the allocation of the burden of proof set out in Supreme Court Decision 2009Du9543 decided November 25, 2010.

If it is confirmed that the promotional plan is not directed at business partners generally, or that the support acts are structured as individually disconnected, reexamine the comprehensive assessment and the scope of the sales.

Liability under Article 2 of the State Compensation Act ordinarily takes the ordinary public official as the standard and adopts, as its criteria, violation of the objective duty of care and loss of objective justification. It also considers together the substantive reasons for the state to bear compensatory liability, having regard to the manner and purpose of the conduct, the presence and degree of the victim's involvement, and the interest infringed and the degree of harm. It is stated that Emergency Measure No. 9 did not meet the requirements for issuance and, having infringed freedom of expression and the right to petition as well as personal liberty and academic freedom, is manifestly unconstitutional and void. Viewing as a whole the series of state actions running from the issuance through compulsory investigation and prosecution to the guilty judgment and service of sentence, it evaluates them as unlawful, having lost objective justification, and, by recognizing compensation for the harms suffered by individual citizens, changes the prior precedent.

The court of first instance dismissed the claim, and the court below affirmed it, finding that the President's issuance was not in itself unlawful, that there was no intent or negligence in the investigation and trial, and that proof by high probability as to the acquittal under the latter part of Article 325 of the Criminal Procedure Act was difficult to establish. The plaintiffs filed a final appeal raising the unlawfulness of the issuance and of the investigation and trial, and Plaintiff 45 also contested, together with those issues, the finding that a judicial settlement had been formed under the former Democratization Movement Compensation Act and the dismissal on procedural grounds of the claim for solatium. The Supreme Court cites the loss of objective justification of the entire series of state actions from issuance through application and enforcement, and takes as a ground for reversal the denial, on the basis of the Constitutional Court's decision of unconstitutionality, of the formation of a judicial settlement as to Plaintiff 45's own solatium. It reverses the portion of the judgment below other than as to Plaintiff 45, and the portion concerning Plaintiff 45's own solatium and inheritance share, and remands the case to Seoul High Court, and dismisses the remainder of Plaintiff 45's final appeal.

Arrange the issues in order, in turn: the requirements for issuance and the unconstitutionality of the infringement of fundamental rights; the exclusion of the warrant requirement and the unlawfulness of the enforcement of the investigation and trial; and the evaluation of the series of state actions as a whole and the need for compensatory liability. The reasoning of the court below is regarded as lying in the position that the issuance was not itself unlawful, that the investigation and trial conducted under the laws and regulations then in force involved no intent or negligence, and that the proof of acquittal under the latter part was insufficient. The separate opinion of Kim Jae-hyung views the issuance, application, and enforcement as unlawful acts involving intent or negligence and speaks of changing the decision in 2012Da48824, while the separate opinion of Ahn Cheol-sang states that Article 29 of the Constitution should be interpreted as imposing self-responsibility of the state. The separate opinion of Kim Sun-soo and Oh Kyung-mi treats the issuance, as an exercise of the state's right of emergency, and the compulsory investigation and prosecution as unlawful acts in the performance of official duties by the President, but distinguishes the judge's guilty judgment as an independent tort. Verify paragraph (1) of Article 2 of the State Compensation Act, Article 29 of the Constitution, and Article 325 of the Criminal Procedure Act, and compare the decisions in 99Da70600, 2000Da29905, and 2013Da217962.

If the records of arrest and detention under Emergency Measure No. 9 or of the guilty judgment, or the scope of formation of a settlement under the former Democratization Movement Compensation Act, changes, review again the establishment of compensation and the judgment dismissing the action.

The Supreme Court determines whether dispatch exists by comprehensively considering, without being bound by the name of the contract, the direction and command and incorporation into the business, the independence of the original employer, the limitation and specialization of the work, and the elements of organization and equipment. It affirmed the determination of the court below recognizing a dispatch relationship, citing the instruction and reporting system for safety patrols, incorporation into a single work group, dependence in education and work management, the performance of atypical work, and dependence on equipment. The direct employment obligation under Article 6-2, paragraph (1), subparagraphs 1 and 5 of the Act on the Protection, etc. of Temporary Agency Workers gives rise to rights in private law, the relationship is established upon finality of the judgment, and non-performance leads to damages in an amount equivalent to wages. Resignation or dismissal occurring after the direct employment obligation has arisen does not in principle affect the relationship of obligation, and a mere indication of resignation cannot be taken as an explicit expression of intent to the contrary. Where the using employer knew or could have known of the same or similar work and intervened in wages so as to discriminate without reasonable grounds, such employer bears liability under Civil Act Article 750 for violation of Article 21, paragraph (1), and is liable to pay compensation of the difference.

The court below recognized a labor dispatch relationship between the plaintiffs and the defendant, citing the instruction and reporting structure of the work of the safety patrol officers and their incorporation into the work group, among others. The court below recognized the arising of the direct employment obligation and wage discrimination compared to the workers used as comparators, and ordered payment of compensation of the difference in an amount equivalent to the wages that would have been received had the direct employment occurred. The defendant appealed, contesting that there was a misapprehension of legal principles in the determination of dispatch, direct employment, and liability for discrimination, among others, but the Supreme Court dismissed all final appeals on May 14, 2020, and ordered the defendant to bear the costs of the final appeal.

Organize the issues in the following order: whether dispatch applies, the establishment of the direct employment obligation and intent to the contrary, wage discrimination, and the scope of damages. The defendant's side contested the applicability of dispatch, citing the form of the service outsourcing contract and the independence of the outsourced employer, and the court below did not accept this, citing direction and command, incorporation, and dependence on equipment. Compare in turn Article 2, subparagraph 1, Article 6-2, paragraphs (1) and (2), and Article 21, paragraphs (1) and (2) of the Act on the Protection, etc. of Temporary Agency Workers, and Civil Act Article 750. There is a need to examine together Supreme Court Decision 2010Da106436 decided February 26, 2015, Supreme Court Decision 2013Da14965 decided November 26, 2015, and Supreme Court Decision 2017Da219072, etc. decided August 29, 2019.

If the original employer's independent selection, education, and determination of hours, and possession of independent equipment are confirmed on the records, reconsider the dispatch assessment.

The Supreme Court held that the burden of proof of causation lies in principle with the victim, but that in pollution litigation scientific precision in proof cannot be demanded. Where the discharge and arrival of a harmful causal substance and the occurrence of damage are proved, the burden of proving harmlessness is placed on the tortfeasor. Expert appraisal results are to be respected in the absence of manifest error, and even where there are some errors, unless the whole is contradictory or extremely unclear, the remaining portions may be used as evidence. In this case, it was proved that from 1992 to 2005 leachate-treated water containing harmful substances was discharged, that part of it reached the fishing ground, and that damage including a decline in catch ensued; causation was therefore prima facie established, and unlawfulness exceeding the limit of tolerance was also recognized.

The court below, finding that the discharge of the leachate-treated water, its arrival, and the occurrence of damage themselves were not proved, did not accept the plaintiffs' claims. The grounds for final appeal contest, in substance, the alleged misapprehension of the legal principle governing the burden of proof in pollution litigation and the error in rejecting the expert appraisal results. The Supreme Court, holding that the circumstances cited by the court below alone could not negate the causation that had been prima facie established, reversed the judgment of the court below and remanded to the Seoul High Court.

The issues are arranged in the order of proof: the harmfulness of the discharged substances, their arrival at the fishing ground, and the occurrence of damage. The court below denied causation on grounds of levels below regulatory standards, errors in the experiments, and the possibility of other sources of pollution; accordingly, examine whether each ground constitutes counter-evidence. Confirmation of Article 750 of the Civil Act and Article 202 and Article 288 of the Civil Procedure Act is needed. Examine Supreme Court Judgment 2009Da42666, Supreme Court Judgment 2006Da67602, 67619, and Supreme Court Judgment 2006Da84126 and Supreme Court Judgment 2008Da57975 together with the assessment of the limit of tolerance.

Revisit cases in which some errors in the expert appraisal results do not shake the credibility of the whole.

The Supreme Court stated that the market value for low-price leasing is determined by the price of continuing transactions in similar circumstances with persons other than special related parties or by the price of ordinary transactions with third parties, and that where these are absent or unclear, it is determined by methods prescribed by statutes and regulations, such as the appraised value of an appraisal corporation. The leasing by Plaintiff 1 to Jinmiseon Development at KRW 50 million per month appears to reflect the burden of repair and maintenance of the facilities, of taxes and public charges, and of responsibility for dispute resolution, so that the amount equivalent to the sublease rent cannot be summarily taken as the market value. In the valuation of the shares of Jinmiseon Development, the Court maintained the judgment of the court below that the principal business type had not changed, in that even before the discontinuation of the lodging business the principal business was subleasing. In a name trust, the agreements and account transaction records created for the appearance of a sale are merely incidental acts that ordinarily follow, and without special circumstances they do not constitute a wrongful act. The portion of the judgment of the court below, which regarded the appearance of funds as a wrongful act and recognized the surcharge for unjustifiable non-filing, was reversed for misapprehension of legal principles.

Defendants, the Head of the Banpo Tax Office and the Head of the Seocho Tax Office, had imposed value-added tax and comprehensive income tax on Plaintiff 1, treating the amount equivalent to the sublease rent as market value. Defendants, the Head of the Seongdong Tax Office and others, treated the arrangement as a name trust and imposed gift tax on Plaintiffs 2, 3, 4, 5, 6, and 7. The court below regarded the amount equivalent to the sublease rent as the market value for leasing and held both the gift tax base tax and the surcharge for unjustifiable non-filing to be lawful. The plaintiffs filed a final appeal contesting the legal principles on market value and wrongful act, and the Supreme Court reversed the portion of the judgment adverse to Plaintiff 1 and the portion concerning the surcharge and remanded the case to Seoul High Court, and dismissed the remaining final appeals of Plaintiffs 4, 5, 6, and 7.

Arrange the issues in the following order: whether the principal business type changed in the share valuation, calculation of market value for low-price leasing, and whether the wrongful act requirement for the surcharge for unjustifiable non-filing is met. The court below regarded the amount equivalent to the sublease rent as market value and the appearance of funds as a wrongful act, but the Supreme Court, relying on the legal principles of agreed assumption of costs and of incidental acts, regarded this as misapprehension of legal principles and reversed. Article 41 (1) of the Income Tax Act, Article 98 (2) 2 of the Enforcement Decree of the Income Tax Act, Article 13 (1) 4 of the former Value-Added Tax Act, and Article 47-2 (2) of the former Framework Act on National Taxes need to be read together. Compare together Supreme Court Decision 2015Du44158 and Supreme Court Decision 2018Du36004.

If the price of similar transactions is newly confirmed or an intent of active concealment is revealed, the determinations of market value and of the surcharge are examined again.