Law Firm Southern River, Attorney Kim Jae-sik, Counsel for plaintiff-appellant

2. The costs of retrial shall be borne by the plaintiff.

The defendant (hereinafter referred to as the "defendant") shall pay to the plaintiff (hereinafter referred to as the "Plaintiff") 15,272,00 won with 5% interest per annum from May 20, 2017 to the service date of a duplicate of the complaint of this case, and 15% interest per annum from the next day to the day of complete payment.

2. Purport of appeal

Of the judgment of the first instance, the part against the defendant shall be revoked and the plaintiff's claim corresponding to the revocation shall be dismissed.

3. Purport of request for retrial;

The defendant's appeal is dismissed. The defendant's appeal is dismissed.

The following facts are clear in records:

A. On April 19, 2018, the Plaintiff filed a lawsuit seeking reimbursement pursuant to the payment of insurance money under the mutual aid agreement with this court (No. 2017 Ghana352681) against the Defendant and received a judgment in favor of the lower court ordering the payment of KRW 4.2 million and the delay damages.

B. The appellate court, in which the defendant appealed and proceeded, recognized the fact that the defendant did not compensate for the damage caused by the failure to pack the goods in full under the terms and conditions of a mutual-aid agreement, and the damage caused by the failure to fix or fix the goods in full. Since the fact that the goods at the time of the accident are not fixed is the plaintiff, the plaintiff was exempted from liability and therefore, the plaintiff was sentenced to the cancellation of the part against the defendant among the judgment of the first instance on November 28, 2018, and dismissed the plaintiff's claim corresponding to the revoked part (hereinafter referred to as "the judgment on review").

C. On April 25, 2019, the Plaintiff appealed against the judgment subject to a retrial but was dismissed on the ground that there was no ground provided for in Article 3 of the Trial of Small Claims Act, and the Plaintiff filed the instant petition for retrial on the same day.

2. The plaintiff's assertion

Although the Plaintiff’s general terms and conditions of a mutual aid agreement stipulate that damage caused by the package failure, etc. of cargo shall be exempted from liability, this case’s mutual aid agreement is subject to the application of the special terms and conditions of safe transport, and it is also subject to compensation for damage caused by the package failure, etc.

However, according to the Gap evidence No. 1, which was submitted to the court of first instance, the certificate of subscription to the mutual aid agreement for cargo liability and the Gap evidence No. 3-2 damage assessment report, the application of the above special agreement for safe transport can be known. In particular, since the above damage assessment report states that "it is judged as damages to be compensated in accordance with the general agreement for cargo liability deduction and the special agreement for safe transport under the mutual aid agreement," it shall be deemed that the special agreement for safe transport should be applied. However, in the judgment subject to a retrial, there was a ground for retrial as stipulated in Article 451 (1) 9 of the Civil Procedure Act, since the judgment did not make any judgment on the above assertion,

3. Determination

According to the records, documentary evidence, as alleged by the plaintiff, was submitted, and the entry of Gap evidence No. 6, Article 39 of the General Terms and Conditions (Guarantee of Freight Forwarding) does not compensate for any damage caused by the failure to complete the packing of the cargo, the failure to cover the cargo, etc. However, Article 3 of the Special Terms and Conditions for Transportation of the Safety, notwithstanding Article 39 of the Special Terms and Conditions for Transportation of the Goods, is recognized as compensating for the damage caused by incomplete packing or failure to cover the cargo.

However, even in the records of this case, the Plaintiff did not find out any trace of the assertion that Article 3 of the Terms and Conditions of the Safe Transport Service applies, and rather, it is recognized that only stated in the complaint that “the Plaintiff paid insurance money based on Article 37 of the Terms and Conditions of the Cargo Liability Deduction (Franchising Risk Guarantee).” On the ground that some of the allegations are different from the allegations in the documentary evidence, it cannot be said that there was omission of judgment solely on the ground that the Plaintiff did not determine the content of the documentary evidence without any assertion.

In subrogation of an insurer, payment of insurance proceeds under an insurance contract shall be a requirement fact, and it shall be deemed to be a violation of the principle of pleading to determine the fact that the parties did not assert the fact that falls under the legal requirements. However, in cases where not only a direct statement is made, but also a party’s assertion of the major fact may be deemed to have asserted the facts indicated in the documentary evidence or an indirect assertion through the overall observation of the parties’ arguments (see Supreme Court Decision 98Da46167, Jul. 27, 1999). However, it is evident that the omission of judgment may not be deemed to have been made on the ground that it did not mean that there was an indirect assertion. Ultimately, it is merely a mistake that the Plaintiff did not request an explanation on the contents of documentary evidence.

4. Conclusion

Therefore, the plaintiff's request for retrial of this case is dismissed as it is without merit. It is so decided as per Disposition.

Judges Guide-Council

Judges White-in-law