[2] In a case where one of the insurers of joint tortfeasors is jointly exempted from liability by paying damages to the victim in excess of the part of the joint tortfeasor’s liability, whether the other insurer may exercise the right of direct indemnity against the part of the other insurer’s liability

[3] Requirements for concluding two liability insurance contracts to constitute double insurance under Article 725-2 of the Commercial Act

The insurer of an insurance contract that covers one joint tortfeasor as the insured under Article 682 of the Commercial Act shall pay insurance money, and the insured's right to indemnity against another joint tortfeasor under Article 682 of the Commercial Act shall be established within the scope in proportion to the portion of the liability of the other joint tortfeasor when the insurer who has concluded an insurance contract with each joint tortfeasor has paid more than the part of the insured's liability and has obtained joint exemption (see, e.g., Supreme Court Decision 2005Da28426, Feb. 9, 2006). Since the insurer who has concluded an insurance contract with each joint tortfeasor directly bears the liability for compensation pursuant to Article 724 (2) of the Commercial Act in relation to each of the joint tortfeasor's liability against the victim, if the insurer who has paid the damages to the victim beyond the part of the liability, and thereby the insurer who has paid the damages to the other joint tortfeasor's liability is jointly exempted, the insurer who has paid the damages may exercise the right to indemnity directly against the part of the other joint tortfeasor's insurer's liability (see, e.

The court below held that the accident in this case occurred by the negligence between the non-party 1 corporation and the non-party 2, the driver of the non-party 3, the non-party 3, the owner of the non-party 3, under Article 3 of the Guarantee of Automobile Accident Compensation Act, and the non-party 1, the non-party 4, as a tort, are liable to compensate for the damage caused by the accident in this case. The plaintiff, the insurer who entered into a contract with the non-party 1 corporation for the business compensation liability insurance (hereinafter referred to as the "business compensation insurance"), paid 100 million won of the insurance money to the victim, but the above amount does not exceed 393,937,49 won of the victim's damages, which is equivalent to 40% of the share of the plaintiff's liability equivalent to 157,574,99 won of the non-party 1 corporation's share of damages to the non-party 1 corporation, as the plaintiff did not exceed 157,579 won.

2. As to the fifth ground for appeal

The court below rejected the plaintiff's assertion that "the plaintiff and the defendant are liable for compensation in accordance with the ratio of their respective insurance amounts where the same insured has entered into several liability insurance contracts in this case, and the plaintiff and the defendant are liable for compensation, and the defendant are obligated to pay to the plaintiff the part corresponding to the defendant's liability ratio among the 100 million won paid by the plaintiff." The plaintiff's duplicate insurance under Article 672 of the Commercial Act refers to several insurance contracts concerning the same purpose of accident. The plaintiff's business liability insurance and the defendant's automobile insurance cannot be deemed the same as the insurance purpose, and since the total insurance amount of the insurance amount cannot be deemed to exceed the insurable value, each of the above insurance cannot be deemed to constitute duplicate insurance under Article 672

If two liability insurance contracts do not share the purpose of the insurance, i.e., the insured interest and the content and scope of the insurance accident, but overlap with a considerable part, and if the accident occurred related to the overlapping insured interest, it constitutes double insurance as stipulated in Article 725-2 of the Commercial Act to the extent that the insured, the insured interest, the insurance accident, and the insurance period overlap (see Supreme Court Decision 2004Da57687, Apr. 29, 2005, etc.).

According to the reasoning of the judgment below, the plaintiff is an insurer who entered into a business liability insurance contract with the non-party 1 corporation for a period of one year from June 22, 2002. The defendant is an insurer who entered into the automobile insurance contract with respect to the non-party 3's flag of this case. The accident of this case occurred within the insurance period. The non-party 1 corporation fell under the non-party 2's wind with the wind with the wind of this case's construction site. The non-party 2 fell under the wind with the wind of the non-party 2 and suffered injury, such as the victim's first half half half of the insurance period, and the second half of the insurance amount's damage liability insurance amount's total amount of the insurance amount's insurance amount's damages from the non-party 2's mid-term operation and the non-party 1 corporation paid 100 million won to the victim pursuant to the insurance amount's liability insurance contract's total damages amount's insurance amount's each of the above insurance amount's cover damages amount's each of the non-party 2's insurance contracts and the non-party 3.

Therefore, the court below should have deliberated on the detailed contents of the business liability insurance and automobile insurance, the background leading up to the use of the term of this case at the construction site of the non-party 1 corporation, and further determined that each of the above insurance does not constitute duplicate insurance on the grounds of its stated reasoning (the Supreme Court Decision 88Meu29177 Decided November 14, 1989 cited by the original court is different from the case, and it is not appropriate to invoke the case in this case). The court below erred in the misapprehension of legal principles as to duplicate insurance and failing to exhaust all necessary deliberations.

However, according to the evidence and records admitted by the court below, the plaintiff's insurance amount (amount of compensation) based on the business compensation liability insurance is KRW 200 million (the plaintiff, the insured, decided to compensate up to KRW 200 million out of the liability for damages to workers by non-party 1 corporation). The defendant's insurance amount (amount of compensation) based on automobile insurance is KRW 393,937,49,000,000,000. Thus, even if each of the above insurance amounts is duplicate insurance, the part of the plaintiff's and the defendant's burden is calculated according to the ratio of the respective insurance amount. The plaintiff's calculation is 132,652,846 won [=393,937,499 won + KRW 200 million + KRW 393,937,499), 261,284,652 won [the defendant's 393,4999 won x 393,939,7939.39].39

Ultimately, since the plaintiff's claim should be dismissed, the above error of the court below did not affect the conclusion of the judgment. This part of the ground of appeal cannot be accepted.

3. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Ahn Dai-hee (Presiding Justice)