[1] Where only one of the joint tortfeasor has filed a lawsuit and jointly exempted, whether the costs of lawsuit incurred for the response and the redemption amount of the costs of lawsuit paid to the victim falls under the scope of the right to indemnity (affirmative), and the standard for calculating the amount of litigation costs

[2] The case holding that one of the joint tortfeasors cannot claim compensation against the other joint tortfeasor on the ground that there are special circumstances that it cannot be viewed as "unpaid expenses and other damages" under Article 425 (2) of the Civil Code concerning the part paid after filing an appeal among the costs of lawsuit and the amount of redemption of the costs of lawsuit paid by the victim from the victim

[1] When one of the joint tortfeasors is liable for damages from the victim and is jointly indemnified by paying the damages cited in the judgment, barring special circumstances such as the amount equivalent to the ratio of fault of the other joint tortfeasors, among the amount of joint immunity, legal interest after the date of joint immunity and the amount that cannot be avoided, barring special circumstances such as the unfair response. The above-mentioned costs and other damages include not only the amount of the costs paid by the joint tortfeasors to the victim, but also the costs spent in the course of the performance of the above lawsuit. From among the attorney's fees paid, the amount within the reasonable scope may be claimed as the costs and other damages that cannot be reasonably determined in consideration of the standards for remuneration under the rules on the inclusion of the attorney's fees in accordance with the rules on the inclusion of the attorney's fees.

[2] The case holding that in case where only one of the joint tortfeasors filed a lawsuit for damages and appealed a part of the judgment of the court below against him, but in the appellate court, since the incidental appeal of the victim was partially accepted in the appellate court, the amount of the judgment of the court below increases above that of the judgment of the court below, the claim was accepted by the victim, claiming that the increased unit price of urban general daily wage, which serves as the basis for calculating the opening costs, should be applied after the closing date of arguments in the court below, and if the joint tortfeasor does not withdraw the appeal despite the incidental appeal of the victim, it is difficult to view that the litigation act after the filing of the appeal was proper litigation, and therefore, it cannot be seen as an appropriate litigation act after the filing of the appeal, and the amount of redemption for the litigation costs after the filing of the appeal against the victim pursuant to the final decision of the litigation costs, among all the litigation costs paid by the victim after the filing of the appeal, cannot be viewed as a "cost or other damages" as stipulated in Article 425 (2) of the Civil Code.

[1] Articles 425(1) and (2), and 760 of the Civil Act; Article 3 of the Rules on the Inclusion of Litigation Costs for Attorneys’ Fees / [2] Articles 425(2) and 760 of the Civil Act

[1] Supreme Court Decision 94Da48257 delivered on October 12, 1995 (Gong1995Ha, 3726), Supreme Court Decision 95Da2951 delivered on November 29, 1996 (Gong1997Sang, 156), Supreme Court Decision 96Da54232 delivered on April 8, 1997 (Gong197Sang, 1387)

Tran Fire and Marine Insurance Co., Ltd. (Attorneys Lee E-young et al., Counsel for the plaintiff-appellant)

Sung-gun (Law Firm Sejong, Attorneys Jeon Jeon-soo et al., Counsel for the defendant-appellant-appellant)

Daegu District Court Decision 99Na16181 delivered on June 9, 2000

1. A. The original judgment shall be modified as follows:

B. The defendant shall pay to the plaintiff money of KRW 370,248,923 and 219,898,632 among them, from November 27, 1996; KRW 107,658,642 from May 12, 1998; KRW 37,769,29 from May 20, 1999; KRW 33,070,200 from July 2, 1999; KRW 1,852,150 from January 6, 200; and KRW 5% from the next day to March 23, 2001; and KRW 25% from the day to the day of full payment.

C. The plaintiff's remaining claims are dismissed.

2. The costs of the lawsuit shall be divided into seven parts through the first and second instances, and three parts shall be borne by the plaintiff and the remainder by the defendant.

1. Purport of claim

The defendant shall pay to the plaintiff the amount of KRW 639,785,790 and the amount of KRW 366,497,720 from November 27, 1996 to the plaintiff; KRW 179,431,070 from May 12, 1998 to the amount of KRW 74,040,00 from May 20, 1999; KRW 8,467,00 from July 2, 1999 to the amount of KRW 11,350,00 from the next day to the original judgment; and KRW 25% from the date of full payment to the date of full payment.

2. Purport of appeal

The part against the defendant in the original judgment shall be revoked, and the plaintiff's claim corresponding thereto shall be dismissed.

1. Occurrence of the right to indemnity;

(a) Basic facts

The following facts are nonexistent between the parties, or there is no dispute between the parties, Eul evidence 1, 3, 4, 5, 8, 9, 10-1, 2 (the evidence No. 1-2 shall be the same as the evidence No. 1-5), Gap evidence 2-1 through 3, Gap evidence No. 6-1 through 5 (the evidence No. 6-1 shall be the same as the evidence No. 1-9), Gap evidence No. 7-1 through 6 (the evidence No. 7-1 shall be the same as the evidence No. 10-10), Gap evidence No. 11 (the evidence No. 12-14), evidence No. 12 through 17, evidence No. 18-1 through 12, evidence No. 3-1, evidence No. 1-2, evidence No. 3-1 and evidence No. 6-2, evidence No. 1-3, evidence No. 7-1 and evidence No. 8-2, evidence No.

(1) On July 24, 1994, the Plaintiff concluded a comprehensive personal automobile insurance with the content that the Plaintiff compensates for the damages to a third party due to an accident that occurred during the operation of the said car by setting the insurance period on July 25, 1995 with respect to the ELE car (hereinafter referred to as the “car”).

(ii)The arche, the arche of the front line, driven by the said car at around 22:00 on January 8, 1995, is proceeding at a speed of about 60 km in the speed of 184 national highways located at the 184 km in the front line of the front line of the front line of the front line of the front line of the road at the speed of about 180 km in the front line of the front line of the front line of the road at the speed of about a speed of about 60 km in the front line of the front line of the road. On the other hand, the vehicle was cut down under the direction of 5.6 meters above the river mouth at a height of about 5.6 meters and caused Nonparty 1, who was on board the said car, to each of the above vehicles, to suffer injuries, such as the injury of the border body frame and the front line of the front line of the road at the speed of the front line of the front line of the road.

(3)The road operated at the time of the instant accident is a new road that the Defendant contracted to Nonparty Co., Ltd., Ltd. (hereinafter referred to as “Seungpo Comprehensive Construction Co., Ltd. at the time of the instant accident”) and performed road packaging expansion works. The point where the area of the instant accident fell was the point where the road was cut down on the wind where the road works are discontinued and the road was directly connected to the river, and approximately KRW 21m was not packed at the later.

(4) The Defendant did not install a signboard to inform the driver of the vehicle that the road was cut down due to the suspension of road works at the instant accident site, and did not have sufficient facilities to prevent the fall of the vehicle. Moreover, the Defendant did not install any sign to prohibit the entry of the vehicle into the instant road or any facilities to prevent the entry of the vehicle, even at the existing Gu road and the location where the instant road adjoin.

(5) The plaintiff paid a total of KRW 15,340,220 on Apr. 27, 1995 to Hyundai Aids for the injury of Nonparty 1, as medical expenses, KRW 59,20 on Mar. 13, 1995, KRW 59,20 on Apr. 13, 1995, KRW 8,518,390 on Apr. 27, 1995, and KRW 6,222,630 on Apr. 30, 196, and paid KRW 15,340,220 on Apr. 30, 1996. (B) The plaintiff paid KRW 269,80 on Mar. 22, 199, KRW 213,30 on Mar. 8, 1996, KRW 483,100 on Oct. 36, 1994 on the injury of Nonparty 1, 2005.

(6)On the other hand, non-party 1 and their families have filed a lawsuit against the plaintiff for the claim of insurance money (hereinafter referred to as "previous lawsuit");

(A) On October 10, 1996, the decision of the court below was made with the Daegu District Court 95Gahap26883, and on October 10, 1996, "the plaintiff shall pay 454,770,477 won to the non-party 1, 400 won to the non-party 1's parents, and 1,000,000 won to the non-party 1's parents and three grandparents, respectively, and 5% per annum from January 9, 1995 to October 10, 196, and 25% per annum from the next day to the date of full payment."

(B) On November 26, 1996, the Plaintiff paid KRW 350,00,00 out of the total amount of the principal ordered to pay in the above judgment to Nonparty 1, the Plaintiff filed an appeal only against Nonparty 1 (the above judgment of the court below became final by failing to file an appeal to Nonparty 1) among the above judgment below. Nonparty 1 also filed an incidental appeal seeking additional payment of KRW 129,493,394, which is the amount of KRW 129,493,394, which was the result of the Plaintiff’s appeal and the incidental appeal of Nonparty 1 reached the Daegu High Court 96Na6463, Apr. 8, 1998, the Plaintiff’s appeal and the incidental appeal of Nonparty 1 were dismissed at the annual rate of KRW 63,660,597, and from January 9, 1995 to October 15, 195, respectively.

(C) On May 11, 1998, the Plaintiff paid an additional amount of KRW 179,431,070, excluding the amount already paid KRW 350,00,000,000, out of the total principal amount of KRW 529,431,074, the Plaintiff ordered payment to Nonparty 1 on May 11, 1998, and filed an appeal. However, as a result of the final appeal proceeding with Supreme Court Decision 98Da24150, Apr. 23, 199, the Plaintiff was partially dismissed, and the remaining final appeal was partially dismissed.

(D) On May 19, 199, the Plaintiff agreed to pay 74,040,000 won for delay damages to Nonparty 1 on May 19, 199, and at the same time Nonparty 1 and the remainder of the judgment, delay damages, and all other claims for damages due to the instant accident.

(7) On April 30, 1999, the Plaintiff appointed an attorney-at-law at each instance for the performance of all the proceedings and delegated the lawsuit. The first instance court and the second instance court appointed an attorney-at-law and paid 1,455,000 won as remuneration for the first instance trial on April 30, 199, and 1,45,000 won as remuneration for the second instance trial on December 29, 1998. In the third instance, the Plaintiff appointed an attorney-at-law in charge of the former instance and paid 1,895,000 won as remuneration for the first instance trial on July 1, 199.

(8)In addition, on December 27, 1999, the plaintiff filed an application for final decision of litigation costs incurred by Nonparty 1 in the previous lawsuit ( Daegu District Court Decision 9Da3573 delivered on January 5, 2000), and notified that "the amount of litigation costs that the plaintiff has to pay to Nonparty 1 is KRW 11,359,262," and repaid 11,350,000 among them on January 5, 200.

(b) Markets:

According to the above facts, the accident of this case was caused by concurrent negligence in neglecting the driver's competence of this case in the front-down road, speeded negligence in the non- packing road, and the defendant, who is the installer and manager of the road of this case, did not install signboards or facilities to prevent the fall of the vehicle at the point of accident of this case, which is the end of the road, and negligence did not install signboards or facilities to prevent the fall of the road of this case. Thus, as the insurer of the above vehicle, the plaintiff is responsible for compensating for the damages suffered by each of the above victims as a direct tortfeasor. However, in their internal relations, it is reasonable to share the damages according to the degree of negligence contributed to the above accident, and if one of the joint tortfeasor or the insurer has jointly exempted from liability by compensating for the whole or part of the damages, the plaintiff can bear the part exceeding the ratio of negligence of the plaintiff's or the other party's right to indemnity in comparison with the part of the defendant's right to indemnity in this case's joint indemnity in accordance with Article 682 of the Commercial Act.

C. As to the Defendant’s assertion

In regard to this, the defendant is a new road that was built by the defendant to perform packing expansion works under contract with the defendant. Since the defendant violated his duty to prevent harm and danger to the management and traffic safety, the plaintiff claims that the defendant can only claim reimbursement for the part to be borne by the defendant after fixing each right, the defendant's share to be borne by the defendant, and then the defendant can only claim reimbursement for the part to be borne by the defendant. Thus, in full view of the whole purport of oral argument in the testimony of the witness stand-down of the court below, the defendant's assertion that the defendant was responsible for management of the road of this case on April 20, 1994 after he started the construction of the road of this case on April 20, 1994 and completed the 1160 meters in length, street width, 8 meters in packages, and 6 meters in width in width in the middle of the same year and completed the construction of the second part of the road of this case from the construction site to the completion inspection after the completion inspection at the construction site. Thus, there is no reason to deem that the defendant's claim.

2. Scope of the right of indemnity;

A. Both claims

(1) The plaintiff is entitled to the payment of the amount equivalent to the ratio of each defendant's fault among the attorney's fees paid by the plaintiff in the course of the lawsuit, as the amount of joint immunity to the defendant, the total amount of damages paid to the above victims, the amount of irrecoverable costs and other damages, and the amount equivalent to the ratio of each defendant's fault among the attorney's fees paid

(2) On this ground, the Defendant filed an appeal without a reasonable reason, which resulted in a significant increase in the amount of liability against Nonparty 1 by citing the incidental appeal filed by Nonparty 1. As such, the Defendant asserted that the amount of liability against the Defendant cannot be claimed to the Defendant on the ground that the Plaintiff was either the Plaintiff himself/herself liable for damages incurred in the appellate trial, which was additionally admitted in the appellate trial, and cannot be claimed on the ground that the Defendant was jointly exempted, and the amount of litigation costs incurred in the appellate trial that the Plaintiff paid after the appellate trial and the amount of litigation costs incurred in the appellate trial after the Daegu District Court’s final decision on the litigation costs cannot be seen as “unfavorable cost and other damages” as stipulated in Article 425(2)

B. General theory

When one of the joint tortfeasors, who committed a lawsuit against the victim for damages and is jointly relieved of liability by paying the damages cited in the judgment, the amount of the joint-liability amount equivalent to the percentage of the other joint-offenders, as well as the amount equivalent to the statutory interest after the date of joint-liability for damages, and the costs that cannot be avoided and other damages may be claimed, unless there are special circumstances such as the unfair response. The above-mentioned costs and other damages shall include not only the amount of the damages paid to the victim by the joint-time tortfeasors, but also the costs incurred in the course of the above lawsuit. From among the attorney fees paid by the joint-time tortfeasors, the amount within the reasonable scope may be claimed as the costs and other damages that may not be avoided (see Supreme Court Decision 96Da54232, Apr. 8, 1997).

C. Facts

(A) Comprehensively taking account of the purport of each of the above evidence, Nonparty 1: (a) accepted 21,151,893 won, active damages (including nursing expenses, 50,911 won) at the original court; (b) 393,845,160 won, and 16,000 won as mental damages; and (c) claimed 158,239,027 won as negative damages; (d) 284,51,450 won, 12,000 won, 200 won, 200 won, 360 won, 160 won, 60 won, 60 won, 60 won, 200 won, 30 won, 60 won, 12,000 won, 200 won, 70 won, 60 won, 200 won, 360 won, 70 won, 200 won, 200 won, 360 won, 786.

(d) Markets:

(A) According to the above facts, it is difficult to deem that the plaintiff's action was an adequate litigation when considering that the economic situation at the time was a yellow season and the unit price of urban ordinary daily wage, which serves as the basis for calculating the opening costs, was continuously increased, and that the plaintiff did not withdraw the appeal despite the non-party 1's incidental appeal. Thus, there are special circumstances under which the plaintiff's appeal against the non-party 1, who was paid after the appeal, cannot be viewed as "unfilled cost and other losses" under Article 425 (2) of the Civil Code, and thus, the above money cannot be claimed to the defendant.

(B)However, even though the damages additionally cited in the above appellate judgment were the amount additionally accepted due to Nonparty 1’s incidental appeal, it constitutes the scope of objective damages suffered by Nonparty 1 due to the instant accident. If Nonparty 1, who did not pay insurance money, filed a lawsuit against the Defendant against the Defendant, then the above amount of award of the judgment below and the amount additionally accepted was sentenced including the above additional amount (the Defendant does not dispute over the reasonableness of the judgment amount due to the said final civil action). Thus, it can be claimed to the Defendant by falling under the scope of the Plaintiff’s joint immunity.

D. Specific scope

Therefore, the specific scope of the Plaintiff’s reimbursement to the Defendant is as follows.

(1)Until November 26, 1996, joint exemption costs: 366,497,720 won (15,340,220 won for medical expenses for non-party 1 + partial amount of 350,00,000 of the damages under the judgment of 96Gahap2683 + KRW 483,100 of the medical expenses for the laverban + KRW 483,100 of the medical expenses for the laverban and other damages for the laverban + KRW 674,400) x0.6 x 219,898,632 won

(b)Joint Immunity on May 11, 1998: gold 179,431,070 won x 0.6 = gold 107,658,642

(c)Joint Immunity on May 19, 199: 62,948,832 won x 0.6 = 37,769,299 won (if the amount is less than the won, the amount shall be rounded; hereinafter the same shall apply).

(a)The interest rate of 5% per annum from January 9, 1995 to November 26, 1996 for 529,431,074 won: 529,431,074 won x 0.05 x 688 days x 1/365 x 49,897,065 won

(b)interest for arrears at the rate of five percent per annum from November 27, 1996 to May 11, 1998, 179,431,074, the remainder derived from deducting the 350,00,000,000 won for the fixed payment from gold 529,431,074 won x 0.05 x 0.05 x 531 days x 1365 x 13,051,767 ;

(c)total: gold 49,897,065 + gold 13,051,767 = gold 62,948,832

(D) The plaintiff asserts that the total amount of 74,040,000 won for delay calculated by applying the interest rate of 25% per annum for a certain period according to the above final judgment shall be based on the total amount of 74,040,000 won for the period. However, since 25% per annum applies only to the defendant of the lawsuit in accordance with Article 3(1) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, the interest rate for 25% per annum shall be applicable only to the defendant of the lawsuit in question.

(4) Until July 1, 1999, the costs of the above attorney-at-law of the court below paid by the plaintiff: 5,117,00 won x 0.6 x 3,070,200 won (or 0.6 x 3,070,200 won (or e.g., the defendant's above attorney-at-law fee was lost beyond a reasonable scope). However, in light of various circumstances such as the criteria for remuneration under the rules on the inclusion of attorney-at-law fees, the rules of the affiliated attorney-at-law council, the value of the case, difficulty

(5) On January 5, 200, the above decision of the court below and the part of the application for a final decision on the costs of lawsuit filed by the plaintiff to Nonparty 1 (the above decision of the court below set the ratio of Non-party 1 and the plaintiff's share of costs of lawsuit to Non-party 2/5 and 3/5): 3,086,917 won x 0.6 x 0.6 x 1,852,150 won

Calculation Amount: 8,401,885 won ¡¿ 3/5-gold 5,154,985 won ¡¿ 2/5 + 107,780 won = 3,086,917 won.

3. Conclusion

Therefore, the defendant's total amount of KRW 370,248,923 and KRW 219,898,632 among them as the plaintiff's claim is made, from November 27, 1996; KRW 107,658,642 from May 12, 1998; KRW 37,769,299 from May 20, 1999; KRW 33,070,200 from July 2, 1999; KRW 1,852,150 from January 6, 200; and KRW 25% from the day after the judgment was rendered; KRW 3,070 to the plaintiff's damages for delay from the day when the judgment was made; KRW 25% from the day after the judgment was rendered; and the defendant's damages for delay from the day after the judgment was partially accepted within the scope of the plaintiff's damages for delay. Thus, the plaintiff's damages for delay shall be dismissed within the extent of the plaintiff's damages for delay.

Judges Shin Young-chul (Presiding Judge) Kim Tae-cheon