[1] The legal nature of the right of direct claim recognized as the victim under Article 724(2) of the Commercial Act (=the overlapping acceptance of damages) and the relationship between the insurer's obligation of compensation for damages and the insured's obligation (=joint and several obligation

[2] The case reversing the judgment of the court below that deliberated and judged on the part against the plaintiffs who did not raise an objection against the ruling of recommending reconciliation, and making a declaration of termination of the lawsuit

[1] The legal nature of the victim's direct right to claim pursuant to Article 724 (2) of the Commercial Code is the insurer's right to claim damages that the victim came to have against the insurer as a result of the insurer's double acceptance of the insured's liability for damages against the victim. In the event an underwriter takes over upon the obligor's request in the overlapping assumption of obligation, the obligor and the underwriter are jointly and severally liable obligations with the subjective common relationship. Thus, the insurer's assumption of obligation is made upon the insured's request. Thus, the insurer's obligation for damages and the insured'

[2] In a case where only the plaintiff Gap filed a lawful objection against the ruling of recommending reconciliation by the court below, and the remaining plaintiffs and the defendants did not raise an objection, the case reversing the judgment of the court below that deliberated and judged on the remaining part of the plaintiffs, despite the fact that the decision of recommending reconciliation between the plaintiff Gap and the defendants return to the previous ruling of recommending reconciliation due to legitimate objection, although the decision of recommending reconciliation between the plaintiff Gap and the defendants return to the previous ruling of recommending reconciliation due to legitimate objection, the decision of recommending reconciliation between the other plaintiffs and the

[1] Articles 413 and 453 of the Civil Act, Article 724(2) of the Commercial Act / [2] Articles 225, 226, 227, 231 subparag. 1, and 232 of the Civil Procedure Act

[1] Supreme Court Decision 98Da44956 decided Feb. 12, 1999 (Gong1999Sang, 527) Supreme Court Decision 2009Da32409 decided Aug. 20, 2009 (Gong2009Ha, 1540)

Plaintiff 1 and three others

Defendant 1 and three others (Law Firm Korea, Attorneys Lee Young-dae et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2009Na118855 decided June 10, 2010

1. Of the judgment below, the part concerning plaintiffs 2, 3, and 4 shall be reversed.

The instant lawsuit between Plaintiff 2, 3, and 4 and the Defendants was concluded on June 1, 2010 by the final and conclusive ruling of recommending reconciliation.

The total costs of litigation shall be borne individually by the plaintiffs and the defendants after the above decision of recommending reconciliation became final and conclusive.

2. The plaintiff 1's appeal is dismissed.

Expenses incurred by the above plaintiff's appeal shall be borne by the same plaintiff.

We examine the grounds of appeal.

1. As to Plaintiff 1’s ground of appeal

A. When one of the obligors jointly and severally liable has a claim against the obligee, when the obligor has set-off, the claim shall be extinguished in order to benefit from all of the obligors jointly and severally liable, and when the obligor who has the claim to set-off has not set-off, the other obligors jointly and severally liable may set-off only the part of the

Meanwhile, the legal nature of the victim's direct claim pursuant to Article 724 (2) of the Commercial Act is the insurer's right to claim damages that the victim came to have against the insurer as a result of the insurer's dual acceptance of the insured's damage liability against the victim (see, e.g., Supreme Court Decision 98Da44956, Feb. 12, 199). In the event an underwriter takes over an overlapping obligation upon the obligor's request, the obligor and the underwriter have a joint and several liability relationship with a subjective joint and several liability relationship (see Supreme Court Decision 2009Da32409, Aug. 20, 209). Since the insurer's assumption of obligation is made upon the insured's request, the insurer's obligation is in a joint and several liability relationship between the insurer's damage liability and the insured's damage liability.

B. According to the reasoning of the first instance judgment as cited by the lower court, the lower court determined that the Defendants’ damages liability amount for Plaintiff 1 was 1,510,920 as to the amount of damages liability recognized in the previous lawsuit (Seoul Southern District Court 2004Gahap18539 case between Plaintiff 1 and the Federation of Korea Bus Transport Business Association) and the amount of damages liability amount recognized in the previous lawsuit (Seoul Southern District Court 2004Gahap18539 case) and that the Defendants’ damages claim against Plaintiff 1 was extinguished in entirety on June 5, 2009, on the ground that the Federation of Korea Bus Transport Business Associations, which finally bears the above liability in relation with the Defendants, offsets KRW 3,277,850 against the Plaintiff 1 by the automatic claim.

According to the records, as a result of the first instance court’s physical examination with respect to Plaintiff 1 at the Seoul Hospital affiliated with the Macheon National University, the opinion that “it is not confirmed that there was no medical relationship with the first instance court, although the appraiser complained of two copies, two iones, five iones, five iones, and five iones,” and the opinion that “it is not possible to ask for appeal that the appraiser caused severe urology in both sides after a traffic accident,” is presented in the field of urology. However, in the field of urology, the above physical examination was conducted after the lapse of five years from the date of the accident, but it was hard to find that Plaintiff 1’s urology had no medical relationship with the first instance court’s urology in light of the fact-finding records, i.e., e., urology, five urology and urology, etc. in the case of the first instance court’s urology in light of the fact-finding of Plaintiff 1, 2004.

Furthermore, in light of the above legal principles and records, the court below’s fact-finding and judgment as to the counterclaim for offset are just and acceptable. In so doing, it did not err by misapprehending the legal principles as to res judicata or failing to exhaust all necessary deliberations, as alleged in the

2. As to the grounds of appeal by Plaintiffs 2, 3, and 4 (hereinafter referred to as “the Plaintiffs”).

A. With respect to a case pending in a lawsuit, the court may, ex officio, make a ruling of recommending reconciliation for the fair resolution of the case, taking into account the parties’ interest and all other circumstances, within the extent not contrary to the purport of the claim. The parties concerned, in principle, may raise an objection against such ruling within two weeks from the date of receiving a service of the authentic copy of the written decision, and an objection shall be filed by submitting a written objection to the court which made the ruling of recommending reconciliation (see Articles 225, 226, and 227 of the Civil Procedure Act). If no objection is raised within the above period, the ruling of recommending reconciliation shall have the same effect as the judicial compromise, and if an objection is legally raised, the lawsuit shall return to the status prior to the ruling of recommending reconciliation (see Articles

B. The records of this case revealed the following facts: ① on May 12, 2010, the lower court rendered a ruling of recommending reconciliation with the purport that “the plaintiffs shall withdraw all the appeals of this case. 2. The total costs of the lawsuit shall be borne by each party; ② the Plaintiffs and the Defendants’ legal representatives are served on May 17, 2010, respectively; ③ the written ruling of recommending reconciliation was submitted to the lower court on May 18, 2010, within two weeks from the date of receipt of the written ruling of recommending reconciliation, and the remaining Plaintiffs, the Defendants, and their legal representatives did not submit the written objection within two weeks from the date of receipt of the written ruling of recommending reconciliation.

Therefore, the decision of recommending reconciliation between the plaintiff 1 and the defendants is deemed to have returned to the previous state due to lawful filing of objection, but the decision of recommending reconciliation between the remaining plaintiffs and the defendants is confirmed as Doing on May 31, 2010, which is the object of filing of objection, and the lawsuit is terminated.

C. Nevertheless, the court below erred by misapprehending the legal principles as to the validity of the ruling of recommending reconciliation, which accepted and deliberated on the remaining parts of the plaintiffs.

3. Conclusion

Therefore, the part of the judgment of the court below regarding the remaining plaintiffs except the plaintiff 1 is reversed, and this part is sufficient to be directly tried by the Supreme Court, and therefore, it is decided to render a self-determination. The lawsuit as to this part is declared to have been terminated by the final and conclusive decision of recommending settlement on June 1, 2010. The total costs of the lawsuit after the final and conclusive decision of recommending settlement between the plaintiffs and the defendants are individually borne by each party, and the costs of the plaintiff 1's appeal are dismissed, and the costs of the above plaintiff's appeal are to be borne by the same plaintiff.

Justices Lee Hong-hoon (Presiding Justice)