(영문) 서울중앙지방법원 2018.11.28. 선고 2018나27910 판결

1. The part against the defendant in the judgment of the court of first instance shall be revoked, and the plaintiff's claim corresponding to the revoked part shall be dismissed;

2. All costs of the lawsuit shall be borne by the Plaintiff.

Purport of claim and appeal

1. Purport of claim

The defendant shall pay to the plaintiff 15,272,00 won with 5% interest per annum from May 20, 2017 to the service date of a copy of the complaint of this case, and 15% interest per annum from the next day to the day of complete payment.

2. Purport of appeal

The same shall apply to the order.

Reasons

1. Basic facts

A. Pursuant to Article 35 of the Trucking Transport Business Act, the Plaintiff entered into a mutual aid agreement for liability for cargo liability (hereinafter “instant mutual aid agreement”) with C Co., Ltd., a member of the trucking Transport Business Act (hereinafter referred to as “freight forwarding company”) on December 5, 2015, setting the period of mutual aid from 24:00 to 24:00 on December 5, 2016.

B. Among the terms and conditions of the instant mutual aid contract, the main contents of the “motor-freight forwarding security” portion are as follows.

Article 37 (Compensation for Loss) Partnership shall be bound to compensate for any loss caused by an accident occurred during the course of transportation (i.e., the transportation of a vehicle and the taking-off of a cargo) in its own name during the mutual aid period from the date of being entrusted by the owner of the goods to the date of being entrusted with the carriage of the goods to the consignee in accordance with the terms and conditions of the carriage contract. 1. The association of statutory damages (non-compensation) Article 39 (Non-Compensation for Loss) Union paid by a partner to the victim within the value of the entrusted cargo shall not compensate for any loss caused by the partner's liability as stated below:

C. The freight forwarding company was entrusted with freight forwarding arrangements by D Co., Ltd. (hereinafter referred to as "owner") which is the owner, and had the defendant transport them.

D. Accordingly, on August 6, 2016, from around 14:30 to 17:00, the Defendant loaded a vehicle E (hereinafter referred to as “Defendant vehicle”) and carried the two parts of the two parts of the parts of the arms onto the meter board (PCB) from around 14:30 to the 17:00, and transported it to Daegu from the Busan plane captain-gun. The instant accident was caused by the winners of the part of the arms above, which was loaded inside the above carriage box, of plastic packaging, was destroyed by smuggling and rhhying the plastic packaging, and the entire electronic safety of the printing circuit board in the above part was lost (hereinafter referred to as “the instant accident”).

E. On May 18, 2017, the freight forwarder paid KRW 14,200,000 to FF Co., Ltd. for the damage assessment costs of the instant accident. On May 19, 2017, the Plaintiff paid KRW 1,072,00 to FF Co., Ltd. for the damage assessment costs of the instant accident.

[Ground of Recognition] Unsatisfy, Gap evidence Nos. 1 through 4, and 6 (including virtual numbers), Gap evidence No. 5 video, the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff's assertion

In the event that the defendant is judged to have a risk of damage to the cargo in the course of carriage, he is liable to compensate for damage under Article 135 of the Commercial Act since he is negligent in transporting the cargo as it is without paying the cargo, such as refusing the transportation, even though he is required to safe determination of the cargo to the owner of the cargo, and if the cargo is not in compliance with such request, he is liable to compensate the plaintiff for damage under Article 135 of the Commercial Act. In accordance with the legal principles of subrogation by the insurer under Article 682 of the Commercial Act, the plaintiff who has paid the mutual aid money with respect to the damage caused by the accident in this case has the obligation to pay the amount of KRW 15,272,00,000 in total

B. Defendant’s assertion

The owner of the Defendant’s vehicle demanded the Defendant to directly have the cargo loaded in the loading of the Defendant vehicle and transport the cargo in its packing condition, and the Defendant also intended to sell the cargo to the inside of the Defendant vehicle. Since the Defendant was only aware of the demand of the owner as to the packing and finish of the cargo, the Defendant did not fault with the Defendant regarding the instant accident caused by incomplete packing and finishing, and the damage arising from the failure to cover the damage incurred by the incomplete packing of the cargo or to cover the cargo is not subject to the mutual aid agreement of this case, and thus the Plaintiff cannot act on behalf of the insurer.

3. Determination

We first examine the defendant's argument on the exemption clause.

In order to recognize subrogation against a third party under Article 682 of the Commercial Act, an insurer should be liable for paying insurance proceeds to the insured (see, e.g., Supreme Court Decisions 94Da200, Apr. 12, 1994; 2009Da48602, Oct. 15, 2009).

The fact that the terms and conditions of the instant mutual aid agreement stipulate that no compensation for damage incurred by the failure to cover the packing of the cargo, or by the failure to cover the entrusted cargo or by failure to fix the cargo is stated above. Since the fact that the Plaintiff was the Plaintiff at the time of the occurrence of the instant accident that did not cover the cargo is the Plaintiff, the instant accident is recognized as the case where the Plaintiff is exempt from liability.

Therefore, the plaintiff's assertion on the premise that the plaintiff is liable to pay the mutual aid money in relation to the accident of this case is without merit.

4. Conclusion

Therefore, the plaintiff's claim shall be dismissed as it is without merit, and since the part against the defendant in the judgment of the court of first instance is unfair with its conclusion, it shall be revoked, and the plaintiff's claim corresponding to the revoked part shall be dismissed as per Disposition.