[1] Whether the right acquired by the insurer by subrogation of the insurer under Article 682 of the Commercial Act includes the victim's right to direct claim under Article 724(2) of the Commercial Act (affirmative), and whether the insurer may exercise the insurer's right to subrogation against the insurer where the person who caused an insurance accident falls under the "insured" rather than the "third party" under Article 682 of the Commercial Act (negative)

[2] Where the subject matter and risk of the insurance are determined in the non-life insurance and the insured and the insurable interest are unclear, the method of determining whether the insurance contract is for the policyholder himself/herself or for others

[1] Articles 682 and 724(2) of the Commercial Act / [2] Articles 639 and 665 of the Commercial Act

[1] Supreme Court Decision 93Da1770 Decided June 29, 1993 (Gong1993Sang, 682), Supreme Court Decision 96Da19765 Decided September 18, 1998 (Gong1998Ha, 2506), Supreme Court Decision 201Da94141 Decided April 26, 2012 / [2] Supreme Court Decision 95Da14800 Decided May 30, 1997 (Gong197Ha, 1992), Supreme Court Decision 200Da29769 Decided November 10, 200 (Gong201Sang, 199), Supreme Court Decision 202Da37094 Decided January 24, 2003 (Gong2001Sang, 199)

M&N Insurance Co., Ltd. (Law Firm Lee & Lee LLC, Attorneys Park Jae-chul et al., Counsel for the plaintiff-appellant)

Case non-life insurance Co., Ltd. (Law Firm Cheongju, Attorneys Don-dong, Counsel for defendant-appellant)

Seoul Central District Court Decision 2015Na27667 Decided August 21, 2015

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. As to ground of appeal Nos. 1 and part of ground of appeal No. 3

A. On the plaintiff's assertion that the non-party 1 and the non-party 2 are liable for joint tort with the non-party 3 who violated the duty of supervision over the non-party 3 who is a child, the court below rejected it on the ground that it is insufficient to recognize that the non-party 1 violated the duty of supervision over the non-party 3 as a person with parental authority, and there is no other evidence to acknowledge

Examining the record in light of the relevant legal principles, the above determination by the court below is just, and contrary to the allegations in the grounds of appeal, the court below did not err by misapprehending the legal principles on the violation of supervisory obligations against the minors

B. The reasons in the written judgment include, to the extent that the text can be recognized as being justifiable, a judgment on the party’s allegations and other means of offence and defense, and there is no need to determine all the parties’ allegations or means of offence and defense (see Article 208(2) of the Civil Procedure Act). Even if the specific and direct determination on the party’s allegations is not indicated in the written judgment, it cannot be deemed an omission of judgment if it can be known that the allegations were accepted or rejected in light of the overall purport of the reasons in the judgment, and even if it is obvious that the assertion would be rejected even if the decision was not actually made, it cannot be said that there was an omission of judgment because it did not affect the conclusion of the judgment (see Supreme Court Decision 2006Da218, Jul. 10

In this case, it seems that the judgment of the court below is included in the judgment of the non-party 2, who is the person with parental authority, and even if the judgment was omitted, it is clear that the plaintiff's assertion is rejected as seen earlier. Thus, the ground of appeal pointing out the omission of judgment by the court below is without merit.

2. As to the ground of appeal No. 2 and the ground of appeal No. 3 as to the non-party 3

A. The subrogation of the insurer under Article 682 of the Commercial Act is a system that acquires the right of the insurer who paid the insured amount to the policyholder or the insured’s third party when the loss caused by an insured accident occurred due to the act of a third party. The right of the insurer acquired by the insurer is naturally included in the right of the victim under Article 724(2) of the Commercial Act (see, e.g., Supreme Court Decision 96Da19765, Sept. 18, 1998). However, in the interpretation of an insurance contract, if the person who caused the insurance accident falls under the “insured” other than the “third party” as prescribed by the above Act, the insurer may not exercise the right of subrogation of the insurer against the insured accident (see, e.g., Supreme Court Decisions 93Da170, Jun. 29, 1993; 201Da94141, Apr. 26, 2012).

On the other hand, in the case of non-life insurance, only the subject matter and risk of the insurance are determined, and where the insured and the insurable interests are unclear, whether the insurance contract is for the policyholder itself or for the other party shall be determined in consideration of all the circumstances such as the content of the insurance contract and the terms and conditions which the parties consider as the content of the insurance contract, the process and process of the conclusion of the insurance contract by the parties, and the practice of the insurance company, etc. (see Supreme Court Decisions 95Da14800, May 30, 1997; 2002Da3496, Jan. 24, 2002, etc.).

B. The reasoning of the lower judgment and the evidence duly admitted reveal the following.

(1) On February 29, 2012, the Plaintiff concluded a collective fire insurance contract (hereinafter “instant fire insurance contract”) with respect to 14 units of the apartment located in the ○○○○○○○ apartment council (hereinafter “instant council of occupants’ representatives”) and the 14 units of the instant apartment located in the Jinju-si ( Address omitted) and the building attached thereto, and the household located in the apartment.

(2) The instant fire insurance is a fire insurance with a special agreement for physical damage that the owner of a special building under the Fire Compensation Insurance Act (hereinafter “Fire Compensation Insurance Act”) requires compulsory subscription, and the insured is not separately specified in the insurance contract, and the “owner of the insurance subject matter” column of the insurance policy includes the “owner of the residents’ representative council” in the “owner of the insurance policy.”

(3) The scope of damages covered under the terms and conditions of the instant fire insurance is “direct damage, fire-fighting damage, and escape damage caused by the accident,” and the insurance premium was borne by the occupants and users of the instant apartment in a manner that included the management expenses.

(4) On September 28, 2010, Nonparty 2, the owner of the instant apartment 114-dong 1204, concluded a LIG Livelihood Security Insurance Contract (hereinafter “instant liability insurance”) with the Defendant and the insured Nonparty 1, the husband. The said insurance contract includes a daily life liability to guarantee liability for physical disability or property damage due to an unexpected accident that occurred during the ownership, use, management, or daily life of a house within KRW 100 million.

(5) The insured under the instant liability insurance includes the registered insured, his spouse and unmarried children, and relatives living together on the resident registration sharing the same livelihood, and the terms and conditions of the exemption stipulate that the insured does not compensate for the “damage caused intentionally by the insured, etc.”

(6) Nonparty 3, as Nonparty 2 and Nonparty 1’s children, was living together with 14 dong 1204 of the instant apartment building. On October 5, 2013, around 01:35, a fire occurred by putting a studio, which was parked on the passage of 114 dong 114 of the instant apartment building (hereinafter “instant fire”). As a result, the said passage part was narrow and the building and a 58 household building, including the section for common use, were damaged, but the said 114 dong 1204 owned by Nonparty 2 did not have any damage.

(7) Accordingly, the Plaintiff paid the amount of damages KRW 511,709,198 in accordance with the instant fire insurance contract. Insurance money for the section for common use was paid to the council of occupants’ representatives; insurance money for the section for exclusive use was paid to each sectional owner; and insurance money for the household in the household in the household in the household.

C. We examine these facts in light of the legal principles as seen earlier.

The fire insurance of this case is an apartment group fire insurance that the council of occupants' representatives of this case concluded with the whole apartment and household housing as one insurance object for the sectional owners in accordance with the Fire Compensation Insurance Act. The insured is the owner of household housing among the sectional owners of the apartment of this case and the members of the household, and the insurable interest is reasonable to view it as the property interest of each section for exclusive use, common use, and household housing of this case owned by each of the sectional owners of this case.

Thus, the non-party 3, who is only a resident of the above 114 dong 1204, did not have any insurable interest with respect to each section of exclusive use, common area, and household effects which were destroyed or damaged by the fire of this case, cannot be deemed as the insured, and therefore, it constitutes a third party as stipulated in Article 682 of the Commercial Act.

In addition, the scope of the insured of the instant liability insurance includes not only Nonparty 1, an insured person, but also Nonparty 3, an unmarried child, and his/her relative living together. Therefore, the Plaintiff who fully compensated for the damage caused by the instant fire may exercise a direct claim against the Defendant, the liability insurer of Nonparty 3 on behalf of the victims within the scope of the amount guaranteed.

Nevertheless, the lower court determined that all of the instant apartment residents could not exercise the insurer’s subrogation right against the Defendant, who is the liability insurer, on the ground that they had insurable interest on the entire apartment of this case. In so doing, the lower court erred by misapprehending the legal doctrine on the insured and insurable interest of the fire insurance.

D. However, the terms and conditions of the instant liability insurance stipulate that the insured shall not compensate for damages in the event of an intentional accident. As seen earlier, Nonparty 3 caused the instant fire by intentionally setting fire, which constitutes the grounds for exemption from liability insurance of this case, and thus, the Defendant has no obligation to pay the insurance money.

In addition, as seen earlier, the tort liability against Nonparty 1 due to the breach of supervisory duty is not recognized. Therefore, this part of the grounds for appeal by the Plaintiff on a different premise is difficult to accept without further review.

Therefore, the judgment of the court below that the plaintiff cannot exercise the right of subrogation against the defendant is justified, and the above error of the court below does not affect the conclusion of the judgment.

3. As to the remaining ground of appeal No. 3

The court below erred by misapprehending the legal principles as to the insurable interests of fire insurance and the insured by deeming all of the residents of the apartment including Nonparty 2 as the insured who have insurable interests on the whole apartment, and by omitting judgment as to whether Nonparty 2 is the insured of the liability insurance of this case. However, as seen earlier, insofar as tort liability is not acknowledged against Nonparty 2 due to the breach of supervisory duty, it is obvious that the insurer subrogation claim against the Defendant who is the liability insurer of Nonparty 2 is dismissed, so the court below’s error did not have affected the conclusion of the judgment. This part of the ground of appeal is without merit.

4. 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 Park Poe-young (Presiding Justice)