In case where the insurer compensates the victim for damages in accordance with the insurance contract with one of the joint tortfeasors, whether the joint tortfeasor who is the policyholder can exercise the right to indemnity against the other joint tortfeasors.

In a case where the insurer pays the damages to the victim in accordance with the insurance contract concluded with one of the joint tortfeasors, and the joint tortfeasor is jointly exempted, the joint tortfeasor, like the case where the joint tortfeasor who entered into an insurance contract, pays the damages to the victim as the insurance money, may obtain the right to indemnity against the portion of the liability of the other joint tortfeasor. However, if the insurer has paid the insurance money for such reason, the right to indemnity against the other joint tortfeasor, who is the policyholder, is naturally transferred to the insurer within the extent of the insurance amount paid, barring any special circumstances such as the insurer's transfer of the right to indemnity from the insurer, it shall be deemed that the other joint tortfeasor cannot exercise the right to indemnity against the other joint tortfeasor.

Article 682 of the Commercial Act

A. Supreme Court Decision 89Meu9194 delivered on November 28, 1989 (Gong1990, 137). B. 92Da4871 delivered on January 26, 1993 (Gong1993Sang, 849) (Gong1993Sang, 849). D. 93Da32958 delivered on January 11, 1994 (Gong194Sang, 6955)

Plaintiff

Defendant 2-Appellant

Incheon District Court Decision 93Na4519 delivered on January 12, 1994

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

We examine the grounds of appeal.

On the first ground for appeal

In a case where the insurer pays the amount of damages to the victim in accordance with the insurance contract concluded with one of the joint tortfeasors, and the joint tortfeasor is jointly exempted, the joint tortfeasor, like the case where the joint tortfeasor who concluded the insurance contract, pays the amount of damages to be paid to him or her at his own expense, may acquire the right to indemnity against the portion of the liability of the other joint tortfeasor. However, if the insurer has paid the insurance money to the same reason, the above right to indemnity against the other joint tortfeasor, who is the policyholder, under the legal principles of subrogation of the insurer under Article 682 of the Commercial Act, shall be transferred to the insurer as a matter of law to the extent of the insurance amount paid. As a result, the policyholder as the joint tortfeasor cannot exercise the right to indemnity against the other joint tortfeasor, unless there are special circumstances such as the acquisition by transfer of the above right to indemnity from the insurer.

In the same purport, the judgment of the court below which rejected the above offset claim on the ground that the defendant lost the right to indemnity and was unable to exercise it because the non-party 1's right to indemnity was transferred to the non-party 1 who is the insurer in accordance with the legal principles of subrogation of the insurer, even if the non-party 1's right to indemnity was incurred by the transfer of it to the non-party 1, who is the insurer, in accordance with the above legal principles of subrogation, by paying damages on behalf of the defendant for the non-party 1's bereaved family members who died due to the accident of this case, which was caused by the accident of this case by the non-party 1's negligence, the defendant was jointly exempted from liability of the defendant as to the above gambling, and the defendant acquired the right to indemnity against the part equivalent to

Furthermore, the above judgment of the court below is just an independent opinion from the premise that the above judgment of the court below is inconsistent with the legal principles of subrogation of insurer, and thus cannot be accepted, since the non-party company which paid only a part of the amount to be compensated causes infringement of the defendant's rights, which is the policyholder, and thus, violates the proviso of Article 682 of the Commercial Act.

On the second ground for appeal

In light of the records, we affirm the fact-finding of the court below which held that the withdrawal of the time-finding from the plaintiff's account due to the yellow half-wave, which occurred in the plaintiff's account, is a testamentary gift resulting from the accident in this case, and there is no error of law of misconception of facts due to a violation of the rules of evidence, such as the theory of lawsuit.

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 on the bench.

Justices Ahn Yong-sik (Presiding Justice)