[1] Whether the fact-finding or the determination of the ratio of negligence by the parties involved in a tort constitutes the exclusive authority of the fact-finding court (affirmative)

[2] The requirements for exercising the right to indemnity among the joint tortfeasors, and even if one of the joint tortfeasors is the victim at the same time, whether the other joint tortfeasor has a claim for the amount corresponding to the portion of the joint tortfeasor's liability out of the damages that the other joint tortfeasor incurred to the third party caused by the tort (affirmative)

[3] Meaning of "the negligence" in offsetting the negligence, and whether the content and proportion of the negligence can be considered as the proportion of the negligence as the joint tortfeasor (negative)

[4] The method of appropriation for offset where delay occurs due to the arrival of the repayment period of the passive claim before the time of offset

[1] The fact-finding and the ratio of the fault of the parties involved in tort are the exclusive authority of the fact-finding court unless it is deemed that it is considerably unreasonable in light of the principle of equity.

[2] The joint tortfeasor shall be held jointly and severally liable in relation to the creditor, but there are certain portions of the joint tortfeasor's liability in relation to the internal relationship. The portion of the joint tortfeasor's liability is determined according to the degree of negligence of the joint tortfeasor's joint tortfeasor's joint tortfeasor's joint tortfeasor's joint liability. When one of the joint tortfeasor has paid more than part of the joint tortfeasor's liability and has obtained joint exemption from liability, the other joint tortfeasor's liability may be exercised in proportion to the portion of the joint tortfeasor's liability. Even in cases where one of the joint tortfeasor is the victim at the same time, if the other joint tortfeasor has paid the damages to the third party who has suffered damages due to the pertinent joint tortfeasor's joint tortfeasor

[3] In order to recognize the claim for reimbursement among the joint tortfeasors, the contents and proportion of each joint tortfeasor's negligence should be determined first. Meanwhile, the victim's negligence taking into account the amount of damages in the tort, i.e., negligence in offsetting the amount of damages, refers to the minor attention required in the community life according to the social common sense or the principle of good faith, unlike the negligence of the tortfeasor, so the contents and proportion of such negligence shall not be considered as the content and proportion of the joint tortfeasor's negligence.

[4] In a case where a declaration of intention of offset has been made, the obligation is deemed to be extinguished as to the equal amount retroactively from the time of offset. Thus, calculation of the difference or appropriation of both claims by offset shall be based on the time of offset. Therefore, in a case where delay has occurred due to the arrival of the time of payment of the passive claim prior to that time, the agreement of the passive claim, the parties to the agreement of the passive claim, and the damages for delay, should be calculated, and the original shall be retired with the balance, and the original shall be retired with the automatic claim.

[1] Articles 396 and 763 of the Civil Act / [2] Articles 425(1) and 760(1) of the Civil Act / [3] Articles 396, 425(1), 760(1), and 763 of the Civil Act / [4] Articles 479(1), 492, 493, and 499 of the Civil Act

[1] Supreme Court Decision 97Da47989 delivered on October 27, 1998 (Gong1998Ha, 2747), Supreme Court Decision 2000Da1327 delivered on November 24, 200 (Gong2001Sang, 124), Supreme Court Decision 201Da5843 Delivered on December 10, 202 (Gong2003Sang, 3426 delivered on January 10, 2000, 200Da3429 delivered on April 29, 209 (Gong203Sang, 570, 570) / [2] Supreme Court Decision 97Da43086 delivered on December 9, 207 (Gong1998, 294, 209) / [3] Supreme Court Decision 2009Da297989 delivered on December 29, 2095

Plaintiff 1 and three others (Attorney Doh-won, Counsel for the plaintiff-appellant)

Seoul Special Metropolitan City (red Law Firm, Attorneys Ansan-soo et al., Counsel for the plaintiff-appellant)

Defendant 2

Seoul High Court Decision 2002Na60513 delivered on December 22, 2004

The part of the judgment of the court below concerning property damage is reversed, and this part of the case is remanded to the Seoul High Court. All appeals by the defendant Seoul Special Metropolitan City are dismissed.

We examine the grounds of appeal.

1. As to comparative negligence

The fact-finding or determination of the ratio of negligence by the parties involved in a tort is a fact-finding authority unless it is deemed that it is considerably unreasonable in light of the principle of equity (see Supreme Court Decision 97Da47989 delivered on October 27, 1998, Supreme Court Decision 2000Da1327 delivered on November 24, 200, etc.).

The court below, based on the adopted evidence, found that the deceased non-party 1 driven the accident vehicle of this case around 01:17 on February 14, 200, and proceeded at a speed of about 116 km from the parallel parallel of Samsung-dong, Gangnam-gu, Seoul, at the speed of about 116 km from the parallel of territorial intersection, and turned off one lane on the surface of the accident, which was scattered on the surface of the accident, and entered the parallel of the U.S., and died after connecting the front part of the leacker's vehicle in control of the accident at the place of the accident and the Cheongdam Park's boundary, and the defendant 2 did not complete the operation of the vehicle of this case after being urged to stop the operation of the vehicle of this case at the speed of 116 km from the 2nd parallel of Samsung-dong, Gangnam-gu, Seoul, and did not complete the operation of the vehicle of this case at the construction site after being ordered to stop the operation of the vehicle of this case.

In light of the records, it is just that the court below recognized the speed of the accident vehicle at the time of the accident at the time of the accident at issue as 116 km per hour, and it is not unreasonable to calculate the fault ratio of the deceased non-party 1. Thus, there is no violation of the rules of evidence or misapprehension of the legal principles as to comparative negligence. The plaintiffs' grounds for appeal on this part and all of the grounds for appeal by

2. As to the ratio of fault between joint tortfeasors and the relation of indemnity

A. In relation to the joint tortfeasor, the joint tortfeasor is liable to the creditor, but there are certain portions of the joint tortfeasor's liability in the internal relationship. The portion of the joint tortfeasor's liability is determined according to the degree of negligence of the joint tortfeasor. When one of the joint tortfeasor has paid one or more of his/her share of liability and has obtained joint exemption from liability, he/she may exercise the right to indemnity against the other joint tortfeasor according to the ratio of the share of liability (see Supreme Court Decision 2000Da69712, Sept. 24, 2002). Therefore, even where one of the joint tortfeasor is the victim at the same time, when the other joint tortfeasor has paid damages to the third party who suffered damages due to the tort, he/she may have a claim for indemnity against the amount equivalent to the share of the victim's joint tortfeasor's liability. However, in order to recognize such claim for indemnity, the content and proportion of each joint tortfeasor's negligence as the joint tortfeasor's liability, i.e., the victim's negligence, i., the content of the joint tortfeasor's negligence 29098.

According to the reasoning of the judgment below, the court below determined that the amount of damages should be deducted from the amount of 57,886,402 won (=14,716,06 won x 0.4) paid or deposited to the bereaved family members of the deceased non-party 2 by May 20, 2004 pursuant to the above judgment, as the bereaved family members of non-party 2 who died of the accident of this case and died of the accident of this case against the Defendants in the damages claim lawsuit filed against the Defendants.

However, according to the above legal principles, if the deceased non-party 1 and the Defendants were to be the joint tortfeasor against the deceased non-party 2's death, and to recognize that the Defendants had a claim for indemnity against the plaintiffs, who are the deceased non-party 1's bereaved family members, the contents and proportion of the fault as the deceased non-party 1 and the Defendants' perpetrator. The court below did not state specific negligence and proportion as the deceased non-party 2's perpetrator as the deceased non-party 1 and the Defendants' perpetrator, even after examining the reasoning of the judgment below. Thus, the court below seems to determine the amount of the claim for indemnity against the plaintiffs on the basis of this, considering the contents and proportion of the negligence in offsetting the deceased non-party 2's death as the deceased non-party 1's negligence ratio as it is, and based on this, it appears that the court below determined the amount of the claim for indemnity against the plaintiffs.

Therefore, the judgment of the court below is erroneous in the misapprehension of the legal principles as to the relation of the claim for reimbursement between joint tortfeasors, and thus, the plaintiff's ground of appeal pointing this out is with merit.

B. According to the records, it is clear that the deceased non-party 2's bereaved family members filed a lawsuit against the Defendants against the deceased non-party 2's fault of the deceased non-party 2 as 20% on the ground that the deceased non-party 2 was erroneous in failing to stop the speed operation of the plaintiff non-party 1 while driving the automobile of this case. This negligence is not taken into account as the injured party's negligence, and it cannot be deemed that the deceased non-party 1 paid 60 million won to the deceased non-party 2's bereaved family members equivalent to the liability insurance money under the automobile accident compensation guarantee business, because the accident of this case is non-life-free automobile, it cannot be deemed that the deceased non-party 1 paid for the co-support. In the same purport, the court below's failure to consider it in calculating the amount of the claims for reimbursement by the defendants, and there is no error in the misapprehension of legal principles as alleged in the grounds of appeal. The plaintiff's ground of appeal on this part

3. On a set-off

In the event of declaration of intention of offset, the obligation is deemed to be extinguished on an equal amount retroactively to the time of offset. Thus, calculation of the difference or appropriation of set-off of both claims by set-off shall be based on the time of set-off. Therefore, in case where the repayment period of the passive claim is already due and delay occurs due to the arrival of the time of set-off, it shall be calculated by the agreement of the passive claim and the damages for delay until the time of set-off, and the automatic claim shall be first retired by the agreement of the passive claim and the damages for delay.

According to the reasoning of the judgment below, the court below set off KRW 57,886,402 out of KRW 144,716,00, paid or deposited by Defendant Seoul Special Metropolitan City to the deceased non-party 2's bereaved family members, against the damages claim of this case, and ordered the payment of interest for delay after the date of the accident.

However, the plaintiffs' damage claim was already occurred on February 14, 200, which is the date of the accident in this case. The defendant Seoul Special Metropolitan City's automatic claim claim for indemnity amounting to KRW 144,716,006, which is the principal and interest of the judgment of the deceased non-party 2's bereaved family members, was paid or deposited on May 20, 2004. Thus, the legal brief containing the defendant's declaration of set-off will take effect retroactively on May 20, 2004 and set off an offset of KRW 57,886,402, which is an equal amount at that time. However, as to the plaintiffs' damage claim which has already been due before the set-off date in accordance with the above legal principles, the damages claim amounting to the period from February 14, 200 to May 20, 204 should have been separately calculated and appropriated, and then the damages damages amount corresponding to that portion should have been separately added.

Therefore, among the judgment below, there is an error of law by misunderstanding the legal principles as to set-off and thereby affecting the conclusion of the judgment. The plaintiff's ground of appeal pointing this out is with merit.

4. Conclusion

Therefore, the part of the judgment of the court below concerning property damage is reversed, and this part of the case is remanded to the court below for a new trial and determination. The appeal by the defendant Seoul Special Metropolitan City is all dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Hong-hoon (Presiding Justice)