[1] The standards for determining whether there is a defect in road traffic safety due to the act of a third party after the construction of a road

[2] The case holding that there is a defect in road management in the case where a vehicle which was illegally parked was left alone for five days or neglected, while maintaining the level of 75% of the road which is a prohibited parking area under the Road Traffic Act as the first line

[3] The nature of the liability for reimbursement owed by the rest of the joint tortfeasor in the event that one of the joint tortfeasor has repaid the entire liability (=liability for division)

[1] The defects in the construction, management, and preservation of a road shall be determined specifically according to social norms by comprehensively taking into account all the circumstances such as the location, etc. of the road, road structure, traffic volume, traffic conditions in the event of an accident, etc., including the original purpose of use, location, shape, etc. of the road. If a traffic safety defect, which is the original purpose of the road, has occurred by an act of a third party after the construction of the road, the preservation defect of the road shall not be recognized merely on the ground of such a defect, and the existence of the defect shall be determined by individually and specifically considering all the circumstances such as the structure, location, environment, and use situation of the road in question.

[2] The case holding that there is a defect in road management in a case where a vehicle which was illegally parked was left alone for five days or neglected while maintaining a level of 75% of the road which is a prohibited parking area under the Road Traffic Act as a one-way lane

[3] The joint tortfeasor is liable for non-joint and several liability in relation to the creditor, but there are some joint and several liability in relation to the joint and several liability. The portion of the joint and several liability is determined according to the degree of negligence of the joint and several limited liability, and when one of the joint and several limited liability has paid one or more of the joint and several liability and has obtained joint immunity, the other joint and several liability may be exercised in proportion to the portion of the liability. Unless there are special circumstances, unless there are several joint and several limited liability which are liable to compensate for one of the joint and several limited liability, his liability to the joint and several limited liability is not reasonable, and it is reasonable to view that the principle of divided liability is applied to the part of the joint and several limited liability.

[1] Article 758 of the Civil Act, Article 5 of the State Compensation Act / [2] Article 758 of the Civil Act, Article 5 of the State Compensation Act / [3] Articles 408, 425, and 760 of the Civil Act

[1] Supreme Court Decision 92Da3243 delivered on September 14, 1992 (Gong1992, 2864), 97Da32536 delivered on February 10, 1998 (Gong1998Sang, 681), Supreme Court Decision 99Da12796 delivered on July 9, 199 (Gong199Ha, 1604) / [3] Supreme Court Decision 96Da50896 delivered on December 12, 1997 (Gong198Sang, 254) Supreme Court Decision 98Da52469 delivered on February 26, 199 (Gong199, 615)

Dongyang Fire Marine Insurance Co., Ltd. (Attorney Kim Jong-soo, Counsel for defendant-appellant)

Gumi-si

Daegu District Court Decision 2001Na15185 delivered on January 30, 2002

All appeals are dismissed. The costs of appeal are assessed against each party.

1. Judgment on the Defendant’s grounds of appeal

The defects in the construction, management, and preservation of a road shall be determined specifically in accordance with social norms by comprehensively taking into account all the circumstances such as the location of the road, structure of the road, traffic volume, traffic conditions in the event of an accident, etc., including the original purpose of the road, and the location, shape, etc. of a physical defect. If a traffic safety defect, which is the original purpose of the road, has occurred by an act of a third party after the construction of the road, the mere fact that such a defect is a defect, shall not be recognized for the preservation of the road; and even if the road can be restored to its original state by taking into account all the circumstances such as the structure, location, environment, and use of the road, the existence of the defect must be determined by individually and specifically examining whether the defect was neglected (see Supreme Court Decisions 92Da3243, Sep. 14, 1992; 97Da32536, Feb. 10, 1998, etc.).

The court below held that the defendant, who is the manager of the road of this case, has a duty to restore the safety of the road by ordering the driver or the person in charge of the management to move from the road or moving it to a safe place, and by removing the traffic obstacle from it, he did not take any such measures as possible, and did not take any such measures, and did not take such measures for five days or more, the defendant failed to take protective measures necessary for the prevention of the accident of this case, and therefore, the defendant did not perform his duty to protect the safety of the road of this case, and therefore, there was a management defect on the road of this case.

In light of the above legal principles, relevant statutes, and records, the above recognition and determination by the court below is just, and there is no error of law such as misunderstanding of legal principles or incomplete hearing as to defects in the construction and preservation of roads, contrary to

2. Judgment on the Plaintiff’s grounds of appeal

A. The court below held that the accident of this case occurred concurrently between the non-party 1's negligence and the non-party 2's negligence who neglected the duty of care in the state of taking place, and the defendant's defect in the management of the road. Since the plaintiff, who is the insurer of this case, paid 92,467,210 won as insurance money to the victim as the damages of this case, the non-party 1 and the defendant are jointly liable for damages, the non-party 1 and the defendant have a duty to respond to the plaintiff's indemnity according to the ratio of internal negligence with each of the non-party 2. In light of the circumstances of this case, it is reasonable to view that the non-party 2's fault ratio was 70% as total, and that the plaintiff was paid 20 million won as compensation amount from the non-party 1 and the defendant's liability for damages to the non-party 1, who is the non-party 2, as the plaintiff's joint liability for damages, the defendant's liability for indemnity should be extinguished within the scope of the plaintiff's liability for damages.

B. However, in relation to the relationship between the joint tortfeasor and the creditor, the joint tortfeasor is not liable for non-joint and several liability, but there are certain parts of the joint tortfeasor's internal relationship. The portion of the joint tortfeasor's liability is determined according to the degree of negligence of the joint tortfeasor, and when one of the joint tortfeasor has paid more than part of his/her liability and has obtained joint immunity, he/she may exercise the right to indemnity against the other joint tortfeasor according to the ratio of his/her liability (see Supreme Court Decision 2002Da14112, May 24, 2002). In cases where there are two or more joint tortfeasors who are liable for reimbursement against one of the joint tortfeasor, unless there are any special circumstances, his/her obligation to the joint and several obligors is not a ground to regard it as a joint and several liability, and instead, it is reasonable to regard it as a divided liability according to the portion of

The Supreme Court Decision 97Da42502, 42519 Decided September 22, 1998, which cited by the court below in view of the nature of the obligation to demand reimbursement by the defendant and the non-party 1 as the quasi-joint and several liability, does not purport that if the person to whom the obligation belongs and the person to whom the obligation is to bear the expenses are different under Article 6(1) of the State Compensation Act, the both parties are liable for the quasi-joint and several liability against the person to demand reimbursement, but the other joint

In this case, the tort liability of Nonparty 1 due to the illegal parking and the state liability due to the defect in the management of the defendant's road differs from the grounds for the occurrence of the liability, and even if the defendant can seek reimbursement against Nonparty 1 pursuant to Article 5 (2) of the State Compensation Act, it cannot be asserted against the plaintiff who is the right of reimbursement (see Supreme Court Decision 92Da2684 delivered on January 26, 1993). In relation to the plaintiff, the non-party 1 and the defendant as the joint tortfeasor, who are the right of reimbursement, bear the divided liability according to their respective shares as to the plaintiff who is the right of reimbursement.

Therefore, the court below determined the portion of each joint tortfeasor's liability and ordered the defendant to perform the liability for reimbursement corresponding to the portion of the liability. The court below held that the amount remaining after deducting the portion of the plaintiff's liability from the total amount of damages is jointly and severally borne by the defendant and the non-party 1, and thus, the defendant's liability against the plaintiff should not be deemed extinguished due to the repayment by the non-party 1. However, the court below erred in the misapprehension of legal principles as to the nature of the liability for reimbursement owed to the other joint tortfeasor who jointly

However, as determined by the court below in this case, if the part to be borne by the plaintiff is 70% of the total amount of damages (the percentage is equivalent in light of the records) and the plaintiff cannot claim reimbursement beyond 30% of the total amount of damages, the scope of the defendant's obligation to claim reimbursement against the plaintiff should be the amount equivalent to the part to be borne by the defendant out of the total amount of damages. If the part to be borne by the defendant exceeds 7,740,163 won which the court below ordered the defendant to pay to the defendant, the defendant should bear only 7,740,163 won (the portion not paid to the plaintiff among the portion to be borne by the defendant should be resolved between the non-party 1) and if the part to be borne by the defendant does not exceed the above amount, the defendant should pay to the plaintiff as the compensation amount, but with respect to this, only the plaintiff cannot change the judgment of the court below against the plaintiff in this case where only the appeal was filed, and therefore, the judgment below's allegation in the grounds of appeal is not affected.

3. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against each party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Son Ji-yol (Presiding Justice)