Plaintiff (Attorney Jeong Sung-sung et al., Counsel for plaintiff-appellant)

Samsung Fire and Marine Insurance Co., Ltd. and eight others (Law Firm Sejong, Attorneys Park Sung-won et al., Counsel for the plaintiff-appellant)

May 1, 2008 (Defendant 3 through 9.)

June 26, 2008 (Defendant 1.2)

1. Upon the plaintiff's conjunctive claim, the defendant 2, 3, 4, 5, 6, 7, 8, 9 and the non-party 2 who appointed the defendant 2, 4, 5, 6, 7, 8, 9 expressed the plaintiff's consent on the withdrawal claim of 279,000,000 won deposited by the Seoul Central District Court No. 19768 on December 28, 2006 by the defendant Samsung Fire and Marine Insurance Corporation, and notify the plaintiff of this to the Republic of Korea (the public official of the Seoul Central District Court in charge).

2. The plaintiff's primary claim and the remaining conjunctive claim are all dismissed.

3. Of the costs of lawsuit, the part arising between the Plaintiff and Defendant Samsung Fire Marine Insurance Co., Ltd. shall be borne by the Plaintiff, and the part arising between the Plaintiff and the remainder

1. The primary claim: Defendant Samsung Fire Marine Insurance Co., Ltd. shall pay to the Plaintiff the amount of KRW 400,000,000 with 6% per annum from February 15, 2006 to the delivery date of the copy of the complaint of this case, and 20% per annum from the next day to the day of complete payment.

2. Preliminary claim: Disposition Nos. 2 and defendant Samsung Fire Marine Insurance Co., Ltd. shall pay to the plaintiff 121,000,000 won with 6% per annum from February 15, 2006 to the date of this decision and 20% per annum from the next day to the date of complete payment.

1. Deposit of insurance money;

A. Defendant 2, 3, 4, 5, 6, 7, 8, 9, Nonparty 2 (hereinafter “Defendant 2, etc.”) and Nonparty 3 were co-owned with Defendant 3, 4, 5, 6, 7, 7, 8, 9, 7, and Nonparty 2 (hereinafter “Defendant 2, etc.”) and the National Credit Union Federation of Korea (hereinafter “Korea Credit Union Federation of Korea”) concluded a contract with Nonparty 2 on May 27, 2005 with Defendant 3, 4, 5, 6, 7, 8, and 7, regarding the 3, 400,00,000,00 won among the entire building of this case, and between Defendant 2 and Defendant 2 for the total insurance coverage period of the 1,210,000,000,000,000 won and 2,005,00,000,07,00.

B. On August 26, 2005, Nonparty 1 (the Nonparty in the judgment of the Supreme Court) entered into a sales contract with Defendant 2 to purchase the instant bath building for KRW 1,050,000,000. On August 29, 2005, Nonparty 1 started the bath business on September 17, 2005 after receiving delivery of the instant bath building and removing the existing facilities including the ceiling and newly installing the interior facilities.

C. On September 23, 2005, Nonparty 1 entered into an insurance contract (hereinafter “instant insurance contract”) with Defendant Samsung Fire Fighting Co., Ltd. (hereinafter “Defendant Samsung Fire”), with respect to damage caused by fire in the instant bathing building, both the policyholder, the owner and the insured agreed to modify the contract between Defendant Samsung Fire and the Plaintiff on January 23, 2006, including the total amount of fire subscription KRW 400,000,000, total of the facilities, KRW 350,000,000, and KRW 50,000,000,000, and the insurance period from September 23, 2005 to September 23, 2015.

D. On February 14, 2006, around 02:27, a fire (hereinafter “the fire of this case”) occurred in the underground parking lot of the instant entire building, and the first floor and the first floor of the entire building of this case were exhaustive, and the injury was inflicted on the interior stairs of the second floor, the escape rooms, and the bathing rooms inside the second floor of this case.

E. Nonparty 3, based on the claim amounting to KRW 75,00,000 against the Plaintiff, seized the insurance claim against Defendant Samsung Fire (Seoul Southern District Court 2006Kadan4790), and the written decision was served on March 20, 2006. Nonparty 4, based on the claim amounting to KRW 95,00,000 against the Plaintiff, provisionally attached the above insurance claim amount (the same court 2006Kadan9001). Nonparty 3, based on the claim amounting to KRW 95,00,00, issued a collection order (the same court 2006 Tadan9301), and the written decision was served on November 6, 2006, and Defendant 2 claimed insurance money against the entire owner of the building of this case who suffered from the fire of this case on December 4, 2006.

F. Accordingly, on December 28, 2006, Defendant Samsung Fire paid to the Plaintiff as the instant fire: (a) KRW 279,000,000 (in the course of pleadings, the part of the building was specified as KRW 185,213,283, the part of the facility, KRW 54,763,014, the part of the house, and KRW 38,904,699), or (b) Defendant 2, one of the nine owners of the entire building of this case, including Defendant 2, etc., who is the owner of the entire building of this case, filed a claim for the insurance proceeds of the entire building of this case; (c) there is a dispute over the ownership of the building of this case; and (d) there is no other dispute over the provisional seizure and seizure of claims, and therefore, it is impossible to find who is the creditor without negligence, pursuant to Article 487 of the Civil Act and Article 248(1) of the Civil Execution Act, deposited KRW 279,000,000.

G. Defendant 3, 4, 5, 6, 7, 8 and Nonparty 2 received the total sum of the insurance proceeds from the fire in this case from the New Cooperatives Mutual Aid Association (including common areas) pursuant to the fire mutual aid agreement.

[Ground of recognition] between the Plaintiff and the Defendant 3, 5, 7, 8, and 9 - The Plaintiff and the Defendant Samsung Fire, Defendant Samsung-2, 4, and 6 - The testimony and arguments of the Plaintiff and the Defendant Samsung Fire, Defendant Samsung 1, 2, 3, 4, 5, and 8, respectively, 1, 2, 3, 4, 2- A-2, 3, 4, 3, 4, 4, 5, 6, 8, Eul evidence 1, 6-1, 6-1, 5-2, 1, 5-1, 7-1, 7-1, 7-2, 4, 4-1, and 8, 4 of Nonparty 4’s testimony and arguments.

2. The parties' assertion

A. The plaintiff's assertion

(1) In the primary claim, since the insurance policyholder of the instant case is the Plaintiff, the deposit for payment with the Defendant Samsung Fire with the Defendant Samsung Fire as the Plaintiff or the Defendant 2 et al. was not deposited in accordance with the principal claim, and thus, the Plaintiff is not effective against the Plaintiff. The Defendant Samsung Fire is obligated to pay the Plaintiff the insurance proceeds of KRW 350,000,000,000, and the total amount of KRW 400,000,000,000,000,000,000,000,000

(2) Even if the above repayment deposit is effective, it is obligated to pay KRW 121,00,000 after deducting KRW 279,000,000 which was deposited in the insurance money to be paid by Defendant Samsung F&M from the preliminary claim. Defendant 2, etc. must accept the said payment and notify the Plaintiff of the fact.

B. The defendant 2 and nine others' assertion

As Defendant 2, etc., as the owner of the entire building of this case, he/she is entitled to directly claim insurance money against Defendant Samsung Fire for the damage incurred by fire on part of the entire building of this case. Thus, the legitimate recipient of the deposit money of this case is the legitimate recipient.

3. Effect of the deposit for repayment made by Defendant Samsung Fire;

A. As Defendant Samsung Fire concurrently competes with the Plaintiff’s insurance claim of this case, it is natural that deposit should be made pursuant to Article 248(1) of the Civil Execution Act.

B. However, as to the legitimacy of the deposit made by the deposited person nine, including the plaintiff or the defendant 2, etc., the defendant Samsung F&M concluded a contract with the non-party 1 on the condition that the owner of the bath building of this case was changed from the non-party 1 to the plaintiff at the time of the insurance contract of this case, but the defendant 2 filed a claim for insurance proceeds with the non-party 1 as the owner of the bath building of this case. As such, the defendant Samsung F&M is difficult to know that the payment of insurance proceeds to anyone among the plaintiff or nine, including the defendant 2, who is the actual owner of the bath bath building of this case under the insurance contract of this case, should be made by an agreement between the above parties on the ownership of the building or by a court or any other public institution such as the court, etc.

C. Therefore, the deposit made by Defendant Samsung Fire on the part of the Plaintiff or Defendant 2, etc. is lawful, and the deposit made by Defendant Samsung Fire on the part of the Plaintiff is also effective.

4. Whether the whole amount of debts is deposited;

A. According to the statements in Eul evidence Nos. 3 and 4, the non-party 1 entered into the insurance contract of this case with the knowledge that the value of the bath building of this case is not appraised at the time of the accident without evaluating the value of the bath building of this case and compensation for the amount of insurance coverage within the limit of the amount of insurance coverage. Article 19 of the ordinary terms and conditions of the insurance contract of this case can be recognized that Article 19 of the ordinary terms and conditions of the insurance contract of this case provides that all or part of the amount of damage shall be paid as insurance money. Thus, the plaintiff cannot claim the total amount of the insurance coverage unless the amount of damage caused by the fire of this case does not reach the amount of insurance coverage,

B. In full view of the purport of each of the above statements in Gap evidence Nos. 7 and Eul evidence Nos. 2-1, defendant Samsung Fire Claim No. 40,000,000, facilities 250,000, and 45,000,000 won were calculated as 60,000,000 won for the above Samsung Fire Claim No. 240,000,000 won for the above Samsung Fire Claim No. 20,000,000 won for the above claim No. 30,000,000 won for the above claim No. 360,000 won for the above claim No. 20,000 won for the above claim No. 365,00 won for the above claim No. 965,00 won for the damage of Samsung Fire No. 2,360,000 won for each of the above claim No. 279,000 won for the above claim No.

C. As seen earlier, Defendant Samsung Fire constitutes double insurance with respect to the instant bathing building, as seen earlier, since it constitutes a fire mutual aid contract by Defendant 2, as to the same, 92,606,642 won (=185,213,283 won ± 186,274,283 won) out of the amount repaid in excess of the insurance proceeds of Defendant Samsung Fire, Defendant Samsung Fire deposited in excess of the insurance proceeds of Samsung Fire. Accordingly, the total insurance proceeds of KRW 186,274,355 (= + KRW 92,606,642 won + + KRW 54,763,014 + KRW 38,904,699) are limited to the above amount, the effect of the payment of the deposit is limited to the above amount, and it is effective as to the remainder of KRW 92,725,645 won (= KRW 279,000,000 – KRW 186,27455 won).

In light of the above, multiple insurance contracts are concluded simultaneously or in succession with regard to the same accident as the same purpose of the same insurance contract, and the total amount of the insurance amount exceeds the insurable value, so if the insured interest is different from the insurable value, that is, the purpose of the insurance contract is not double insurance, and there is no need for multiple policyholders to be the same, but the insured is required to be the same person. On the other hand, the insured of the fire mutual aid contract of the new mutual aid association is the plaintiff, while the insured of the above fire mutual aid contract of the new mutual aid association is the defendant 2 or defendant 3, and the insured of the above fire mutual aid contract of the defendant 3 is different from the fact that the insurance object of the defendant 3 et al. is the 3 and 4th floor of the entire building of the case, the dispute over the defendant Samsung Fire, which is premised on the fact that the insurance contract of

D. Therefore, the plaintiff's primary assertion that the payment deposit of the defendant Samsung F&M is not effective as the repayment, and the conjunctive assertion against the defendant Samsung F&M is without merit.

5. Persons entitled to receive insurance proceeds of the instant insurance contract.

A. Unless otherwise stipulated, the fire insurance cannot be deemed as having the nature of the liability insurance to compensate for losses sustained by the insured who is the owner of the subject matter (Supreme Court Decision 2002Da33496 Decided January 24, 2003). After concluding the fire mutual aid contract with the Newcom-Aid Association as to the bathing building of this case, the non-party 1 purchased the bathing building of this case from the non-party 2 and transferred it to the non-party 1, and then changed the owner and the insured to the plaintiff. In the case of the fire insurance in the insurance contract of the defendant Samsung F&M, the actual owner of the building and the non-party 1 did not pay the insurance money to the owner under the insurance contract, the defendant 3 et al. cannot be deemed as having concluded the insurance contract of this case for the purpose of the non-party 2, the non-party 2, as the owner of the bathing building of this case, since the non-party 1 purchased the insurance money under the insurance contract of this case.

B. Therefore, even if Defendant 2, etc., as the owner of the building of this case, suffered damage from the fire of this case, Defendant 2, etc., the fire insurance based on the insurance contract of this case is not liability insurance or insurance for others, and thus, Defendant 2, etc. cannot claim insurance money on the basis of the insurance contract of this case, which is the direct insurer, against Defendant Samsung Fire (the fact that Defendant 3, etc. received insurance money after the decision of recommending reconciliation of this court, and the new assertion by the parties, etc.

C. Therefore, Defendant 2, etc. has a duty to express his/her consent when the Plaintiff filed a claim for the withdrawal of the deposit money made by Defendant Samsung Fire, and to notify this to the Republic of Korea (the deposit officer of the Seoul Central District Court).

6. Conclusion

Therefore, the part of the plaintiff's conjunctive claim against 9 persons, including the defendant 2, etc. among the plaintiff's conjunctive claim is justified. The plaintiff's primary claim and the remainder of the conjunctive claim are dismissed for all reasons, and it is so decided as per Disposition.

[Omission of List of Appointed]

Judges Lee Young-dong (Presiding Judge)