2. The plaintiff's remaining appeal is dismissed.

3. The Plaintiff shall bear 40% of the total litigation costs. The remainder shall be borne by the Defendant, respectively.

4. The portion paid with the amount under paragraph (1) may be provisionally executed.

The plaintiff is an insurer who has entered into an automobile comprehensive insurance contract with B and C Benz E280 vehicles (hereinafter referred to as the "insured vehicles"), and the defendant is a person who is responsible for the installation and preservation of the structure of the D apartment in Seongbuk-gu, Sungnam-si (hereinafter referred to as the "multi-family housing in this case").

On August 29, 2010, the storm wave of typhoons occurred in the Northwest-Pacific, Northwest-Pacific. On September 1, 2010, 201, the maximum wind of the mornings passed on September 1, 2010, and around 06:35 on September 2, 2010, the following day, when the robbery was deteriorated, the maximum wind of the parallel 37.5 degrees at 36m/s. On September 2, 2010, the storm caused a heavy storm accompanied by strong wind due to the storm and wave of typhoons. On September 2, 2010, the ice Busan Busan High Court, which was installed on the apartment rooftop of the instant apartment, was destroyed by the roof, glass, etc. of the insured vehicle parked on the ground parking lot of the said apartment (hereinafter referred to as the “accident in this case”).

B around September 10, 2010, around 10:07, around September 3, 2010, the Plaintiff filed a claim for insurance payment with the Plaintiff on September 3, 2010. The Plaintiff paid KRW 11,896,000 for the repair cost to B on December 10, 2010.

[Ground of Recognition] Facts without dispute, entry of Gap evidence 4, entry of Gap evidence 2, 3, and 5, each entry of Gap evidence 2, 3, and 5, each video of Gap evidence 6 through 22, Gap evidence 23, Eul evidence 5-1 and Eul evidence 5-2, and the purport of the whole pleadings

2. Determination as to the cause of action

(a) Occurrence of liability for damages;

In light of the above facts and the fact that the apartment building of this case was constructed as a apartment with the approval of use on October 1995 by the public law dealing with the Asia-Pacific Busan Metropolitan City. In light of the fact that it is the most low price and the part exposed to the outside can be laid off as the last part of the gambling roof, which is the vulnerable material to the wind, and there is no evidence that the defendant performed the roof repair work of the ice Busan Metropolitan City for the apartment of this case before the accident of this case, it is reasonable to deem that the ice Busan Metropolitan City for the apartment of this case was in a state where the ice Busan Metropolitan City for the apartment of this case fails to meet the ordinary stability to meet its purpose. The defendant, the management authority of the apartment of this case, has the duty to respond to the plaintiff's claim for reimbursement.

B. Limitation on liability

The defendant asserts that the accident of this case is caused by a natural disaster, which is the difficulty of typhoons, and therefore, it should be exempted from liability.

On the other hand, the burden of proving that the occurrence of damage was inevitable even if there was no such defect due to force majeure in the natural disaster. In full view of the purport of the entry and the whole pleadings in the evidence No. 1, it is recognized that the typhoon studio was the maximum custom near the center at September 2, 2010 when he landed in the reinforcement area around 06:35, and that the strong wind was not high in the water source area. However, it is recognized that such fact alone is a natural phenomenon that belongs to the dives of the degree that the strong wind accompanied by the typhoon stur was not ordinarily anticipated in the area of the accident, and that the accident in this case could not be prevented even if it was taken necessary measures for the safety of the roof of the apartment, and there is no reason to acknowledge otherwise.

However, if the damage suffered by the victim is caused by competition between natural power and the tortfeasor's negligence, the scope of the tortfeasor's compensation shall be limited to the remaining portion after deducting the portion deemed to have contributed to natural power as to the damage from the perspective of fair burden of damage. In light of the above circumstances, it is reasonable to view that the degree of the damage caused by typhoon's degree of contribution to the accident in this case is 70%, and therefore, the defendant's liability is limited to 30%.

C. Defendant’s defense for prescription

The Defendant raised the instant lawsuit on September 3, 2013, which was after the lapse of three years from September 2, 2010, which was the date of the instant accident, and accordingly, the claim claimed by the Plaintiff had already expired upon the lapse of the prescription period.

Article 682 of the Commercial Act provides that an insurer who has paid the insured amount shall acquire the rights of a policyholder or the insured against the third party within the limit of the amount paid by the insurer in cases where the damage was caused by the act of the third party. Since the rights of the third party, such as the insured, etc., are transferred to the insurer without loss of identity, the period of extinctive prescription of the claim acquired by the insurer and its starting point shall be determined by the claim itself against the third party (see, e.g., Supreme Court Decision 9Da3143, Jun. 11, 199).

Meanwhile, Article 766(1) of the Civil Act provides that a claim for damages due to a tort shall be terminated by prescription if it is not exercised within three years from the date the injured party or his/her legal representative becomes aware of the damage and of the identity of the perpetrator. Here, “the date when the injured party or his/her legal representative becomes aware of the damage and of the identity of the perpetrator” refers to the date when the injured party or his/her legal representative becomes aware of the damage and of the identity of the tortfeasor. The recognition is not sufficient only on the presumption or awareness of the damage occurrence but also on the fact that the harmful act constitutes a tort. In other words, the recognition of the requisite facts of the tort, namely, the existence of an unlawful tort, the occurrence of damage, and the causal relationship between the harmful act and the damage, etc., shall be determined by taking into account various objective circumstances of each individual case and the actual possible situation, and the burden of proving the time when the damage was discovered is to a person who claims the benefit arising from the expiration of the extinctive prescription (see, e.g., Supreme Court Decision 2006Da17539, Jul.

In this case, the Plaintiff’s claim against the Defendant is the damage claim against the Defendant in B acquired by the insurer subrogation doctrine by paying the insurance proceeds to B, as seen earlier, and the extinctive prescription for three years from the time B became aware of the damage and the perpetrator pursuant to Article 766(1) of the Civil Act. However, the evidence submitted by the Defendant alone is insufficient to recognize that B was aware of the occurrence of the damage caused by the instant accident around September 2, 2010, which is the date of the instant accident, and there is no evidence to acknowledge otherwise. Accordingly, the Defendant’s defense is without merit.

3. Conclusion

Therefore, the defendant is obligated to claim against the plaintiff as to the existence and scope of the obligation to pay the plaintiff's insurance money (1,896,000 x 30%) from December 11, 2010, the following day of the payment of the plaintiff's insurance money to November 6, 2014, the amount of 5% per annum under the Civil Act and 20% per annum under the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the next day to the day of full payment. The plaintiff's claim is accepted within the above recognition scope, and the remaining claims are dismissed for reasons without merit. Since the judgment of the court of first instance is unfair because the conclusion is partially different, part of the plaintiff's appeal against the plaintiff who ordered the payment of the above money is revoked and the defendant is ordered to pay the above money. It is so decided as per Disposition by the assent of all participating Justices.

Judges or higher-ranking

Judges Choi Jae-won