[손해배상청구사건][하집1984(4),157]
Whether Article 682 of the Commercial Act applies mutatis mutandis to a subrogation system stipulated in the mutual aid agreement of the National Federation of Fisheries Cooperatives (affirmative)
Although the subrogation system is not directly stipulated in the Fisheries Cooperatives Act, and is stipulated in the Mutual Aid Regulations of the National Federation of Fisheries Cooperatives, the above Mutual Aid Fund itself is a kind of legal system to reduce and distribute losses by jointly sharing an individual accident caused by an accident to many people at risk of danger, and it is reasonable to interpret that the Mutual Aid Fund can exercise its rights to a third party of the beneficiary to the extent that it does not prejudice the rights of the beneficiary to the extent that it does not infringe upon the rights of the beneficiary, in case where the damage was caused by the act of the third party by applying mutatis mutandis the subrogation system as stipulated in Article 682 of the Commercial Act.
Article 682 of the Commercial Act
National Federation of Fisheries Cooperatives
Tae Video Line Co., Ltd
Busan District Court (83 Gohap4592)
(1) Of the original judgment, the part against the Plaintiff corresponding to the payment order shall be revoked.
The defendant shall pay 25,024,828 won to the plaintiff.
(2) The plaintiff's remaining appeal is dismissed.
(3) The costs of lawsuit shall be divided into three parts through the first and second trials, and the two parts shall be borne by the plaintiff and the remainder by the defendant.
(4) Paragraph (1) can be provisionally executed.
The original judgment shall be revoked.
The defendant shall pay 85,400,000 won to the plaintiff.
The costs of lawsuit shall be assessed against the defendant and a declaration of provisional execution, which shall be assessed against all of the first and second trials.
On July 22, 1982. 02: around 00, around 198, 100, the non-party 1 and the non-party 2 were sunken because the non-party 1 and the non-party 1 and the non-party 2 were deprived of the right to mutual aid funds belonging to the non-party 1 and the non-party 2, the non-party 3 and the non-party 2, the non-party 1 and the non-party 2, the non-party 3 and the non-party 2, the non-party 1 and the non-party 2, the non-party 1 and the non-party 2, the non-party 2, the non-party 3 and the non-party 2, the non-party 5 and the non-party 2, the non-party 9 and the non-party 2, the non-party 2, the non-party 9 and the non-party 2, the non-party 1 and the non-party 2, the non-party 9 and the non-party 3 (the counter-party 9).
The plaintiff asserts that the third party company's act of the defendant company, the third party company, caused the sinking of the above 2 South Sung Ho, which is the purpose of the mutual aid, that the plaintiff paid 85,400,000 won to the non-party company and compensated for its losses, so the non-party company, the beneficiary, acquired the right to claim damages against the defendant company, the third party, in accordance with the mutual aid agreement. Thus, the plaintiff asserts that the above non-party company, on behalf of the above non-party
Therefore, the plaintiff's above mutual aid project refers to the business of paying the above 80 won based on the provision of Article 132 (1) 6 of the Fisheries Cooperatives Act and Articles 139 and 64 (4) 6-1 and 2 of the above 6-mentioned No. 80, and in the case of the general mutual aid for fishing vessels, it refers to the business of paying the mutual aid money within a certain period of time after receiving the mutual aid money from the mutual aid contract holder. In the case of the general mutual aid for fishing vessels, it shall conclude the vessel's hull, main body, subsidiary body, and individual design within a certain period of time and make it possible to pay the mutual aid money to the beneficiary for the purpose of the mutual aid contract if the damage was caused to the non-party 2's non-party 5's non-party 2's rights to the above 80-party 2's damages to the non-party 5's non-party 2's non-party 2's rights to the above mutual aid fund. Thus, the above subrogation system shall not be directly provided for the plaintiff 3's damages.
Before the Plaintiff’s filing of the instant lawsuit, the Defendant has already filed a claim against the Defendant for damages of KRW 197,686,428 due to the vessel collisions of the non-party company against the Defendant, and the damages are also included in the Defendant’s limited liability amount. Therefore, the Defendant asserted that the Plaintiff cannot pay the full amount of the limited liability amount. Accordingly, the Defendant’s claim for damages against the non-party company and the Plaintiff’s claim for mutual aid money against the non-party company are ultimately aimed at compensating for the same damages, and the claim for damages against the non-party company was paid KRW 85,40,00 for the full amount of the damages claim against the Defendant, and the claim for damages of KRW 25,05,00 for the non-party company against the Defendant was already reverted to the Plaintiff, and the non-party company filed a separate lawsuit against the Defendant and did not affect its conclusion. Therefore, it cannot be accepted by the Defendant’s assertion.
Therefore, the defendant is obligated to pay the above amount to the plaintiff 25,054,828 won. Thus, the plaintiff's claim of this case is justified within the above scope of recognition and the remaining claims are dismissed with merit. Since the court below's decision has dismissed all the plaintiff's claim, the appeal is reasonable within the above scope of acceptance, and the part against the plaintiff corresponding to the part of the order ordering payment among the original judgment is revoked, and the plaintiff's remaining appeal is without merit. Thus, the plaintiff's remaining appeal is dismissed. It is so decided as per Disposition by the application of Article 199 (1) of the Civil Procedure Act and Article 6 (1) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings to the provisional execution order.
Judges Jeon Soo-young (Presiding Judge)