[1] In a case where an industrial accident occurred due to the joint tort by a third party, a policyholder, or his/her employees, whether the exercise of the right to demand a reimbursement (affirmative) and the scope thereof

[2] Whether the scope of the right to indemnity due to the payment of industrial accident compensation insurance shall be calculated according to each subject matter of lawsuit against the third party (affirmative)

[3] In the case of damage to life or body caused by a tort, whether positive damage and passive damage are separate objects of lawsuit (affirmative)

[1] Article 15 (1) of the former Industrial Accident Compensation Insurance Act (amended by Act No. 4826 of Dec. 22, 1994) refers to a person who has no industrial accident compensation insurance relationship between the victimized worker and is liable for damages caused by tort, etc. against the victimized worker. However, the right to indemnity can also be exercised in cases where the injured worker and the insured or his/her employees' joint tort. In such cases, the third party can exercise the right to indemnity regardless of the burden of the insured or his/her employees' fault ratio, and the third party who has complied with the right to indemnity can not exercise the right to indemnity as to the portion to be borne by the insured, as expected in advance to re-re-claim the said portion to the insured according to the ratio of negligence.

[2] In a case where the Korea Labor Welfare Corporation that paid the industrial accident compensation insurance to the victimized worker exercises the right to indemnity against the insured and the third party who is the joint tortfeasor, the scope of the claim for indemnity shall be limited to the amount of the claim for damages against the third party of the victimized worker

[3] In a case where a tort causes damage to life or body, active and passive damages are different in the subject matter of a lawsuit.

[1] Article 15(1) of the former Industrial Accident Compensation Insurance Act (amended by Act No. 4826 of Dec. 22, 1994) / [2] Article 15(1) of the former Industrial Accident Compensation Insurance Act (amended by Act No. 4826 of Dec. 22, 1994); Article 750 of the Civil Act; Article 682 of the Commercial Act / [3] Articles 750 and 751 of the Civil Act; Article 234 of the Civil Procedure Act

[1] Supreme Court Decision 91Da28726 decided Feb. 25, 1992 (Gong1992, 1134), Supreme Court Decision 92Da2360 decided Dec. 8, 1992 (Gong1993, 424), 95Da19751 decided Jan. 26, 196 (Gong1996, 737) / [2] Supreme Court Decision 88Da5041 decided Apr. 25, 198 (Gong1989, 810), Supreme Court Decision 92Da23360 decided Dec. 8, 1992 (Gong1993, 4979, 97Da1963979 decided Feb. 13, 1997) / [309Da1963979 decided Feb. 16, 197]

Korea Workers' Compensation & Welfare Corporation

Honam Petroleum Chemical Co., Ltd. (Attorneys Han Han-soo et al., Counsel for the plaintiff-appellant)

Samsung Heavy Industries Ltd.

Seoul High Court Decision 96Na1681 delivered on July 24, 1996

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

We examine the grounds of appeal.

1. The third party who is the other party to the exercise of the right to indemnity under Article 15 (1) of the former Industrial Accident Compensation Insurance Act (amended by Act No. 4826 of Dec. 22, 1994) refers to a person who has no industrial accident compensation insurance relationship with the victimized worker and is liable for damages caused by tort, etc. against the victimized worker. However, the right to indemnity can be exercised even when the damaged worker was caused by a third party, the insured or his employees' joint tort. In this case, the third party can exercise the right to indemnity regardless of the burden of the insured or his employee's fault ratio, and the third party who has complied with the right to indemnity cannot exercise the right to indemnity as to the part to be borne by the insured even if he was anticipated in advance to compensate for the part to be borne by the insured according to the ratio of negligence (see Supreme Court Decisions 87Meu3109, Sep. 26, 198; 29Da319605, Dec. 16, 1992).

In this regard, the court below is just in holding that the defendant has a duty to comply with the claim for compensation against the whole amount of the insurance benefit of the plaintiff, and there is no error in the misapprehension of legal principles as pointed out in the theory of lawsuit. Therefore, the argument is without merit.

2. In a case where the plaintiff who paid the industrial accident compensation insurance money to the injured worker exercises the right of reimbursement against the defendant who is the joint tortfeasor, the scope of the right of reimbursement shall be limited to the amount of the claim for damages against the defendant who has the right of lawsuit with the insurance benefit (see Supreme Court Decisions 8Da5041, Apr. 25, 1989; 89Da5997, Feb. 13, 1990). In a case where the injured worker suffered damages to his life or body due to a tort, active and passive damages differ in the subject matter of lawsuit (see Supreme Court Decisions 76Da1313, Oct. 12, 1976; 94Da20730, Aug. 23, 1996).

Nevertheless, the court below determined that the sum of funeral expenses and other insurance benefits paid to the non-party deceased Kim Jong-do and the sum of the insurance benefits, such as medical care benefits and temporary layoff benefits paid to the non-party deceased's deceased's deceased's deceased's deceased's deceased's deceased's deceased's deceased's deceased's deceased's deceased's deceased's deceased's deceased's deceased's deceased's deceased's deceased's deceased's deceased's deceased's deceased's deceased's deceased's damages claim against the third party, and ordered the plaintiff to reimburse the total amount of the insurance benefits paid by the plaintiff. Since the amount paid as the above funeral expenses and medical care benefits is related to positive damages, and the subject matter of lawsuit is different from the passive damages, the above judgment of the court below is erroneous.

However, according to the evidence Nos. 9 (Judgment), as to the net quota, it can be known that the amount of KRW 829,750 was separately disbursed for medical expenses other than the amount of KRW 8,826,930 as medical care benefits until April 9, 1994, and even thereafter, the amount of KRW 22,347 per share was required for medical expenses. Thus, even if the amount equivalent to 10% of the deceased's negligence ratio confirmed by the court below is deducted from the above aggregate, it is clear that the above amount of medical care benefits should be exceeded, and it is obvious that the amount of KRW 10% should be deducted from the above aggregate amount. Furthermore, considering the fact that the expenses of funeral paid to the deceased for the insurance benefits are calculated uniformly on the basis of average wage of KRW 120 days according to the Industrial Accident Compensation Insurance Act and the expenses of funeral paid for the insurance benefits as the insurance benefits are calculated on the basis of the average wage of KRW 120 days, the entire amount of the above insurance benefits cannot be considered to be excessive. Accordingly, the judgment below's are justified.

3. Therefore, the appeal is dismissed, and all 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)