(영문) 의정부지방법원 2015.1.30. 선고 2014나51146 판결

1. Of the judgment of the court of first instance, the part against the defendant in excess of the following order for payment is revoked, and the plaintiff's claim corresponding to that part is dismissed.

The defendant shall pay to the plaintiff 1,463,360 won with 5% interest per annum from February 9, 2013 to January 30, 2015, and 20% interest per annum from the next day to the day of full payment.

2. The defendant's remaining appeal is dismissed.

3. 9/10 of the total litigation costs is assessed against the Plaintiff, and the remainder is assessed against the Defendant, respectively.

Purport of claim and appeal

1. Purport of claim

The defendant shall pay to the plaintiff 43,277,392 won with 20% interest per annum from the day following the day of service of a copy of the complaint of this case to the day of complete payment.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

Reasons

1. Quotation of judgment of the first instance;

The reasoning for this Court’s explanation concerning this case is that it is identical to the judgment of the court of first instance except for the following parts, and thus, citing this as it is in accordance with the main sentence of Article 420 of the Civil Procedure Act.

2. Parts to be dried;

A. From the third fifth fifth fifth of the judgment of the court of first instance, the term "a fluoral salt" used antibiotics to read "the fact that a fluoral salt is a fluoral salt generated by the germs, which does not cause diseases in normal conditions, using the antibiotics," to read "the fluoral salt ledger shall be balanced between the fluoral total of the normal fluoral total and the abnormal fluoral total of the fluoral total of the normal fluoral unit by using the common antibiotics and thus resulting from excessive multiplication of the harmful fluoral unit."

(b) from 10th to 15th day of the first instance judgment, the following shall be followed:

E. Judgment on the Defendant’s assertion of mutual aid

(1) The defendant's assertion

(A) Since the insurance contract between the defendant and C requires the insured to be compensated with the exception of KRW 10 million as self-paid by the insured, the amount of damages to be paid by the defendant shall be deducted from the amount of damages to be paid by the defendant.

(B) The Plaintiff’s unpaid medical expenses amounting to KRW 9,030,000 is exempted. Since C paid KRW 3,199,920 for medical expenses and hospitalization expenses for the Seoul Sung Hospital and the Central University Hospital, the Plaintiff’s damage liability amounting to KRW 12,229,920 should be deducted.

(2) Determination

(A) The legal nature of the victim’s direct claim pursuant to Article 724(2) of the Commercial Act is that the insurer concurrently takes over the insured’s obligation to compensate for damages against the victim, and the victim is the right to claim damages against the insurer and the insured’s right to claim damages against the insurer, not the right equivalent thereto (see, e.g., Supreme Court Decision 94Da6819, May 27, 1994). However, the insurer’s obligation to compensate for damages based on the victim’s direct claim is premised on an insurance contract, and is recognized within the insurer’s liability limit pursuant to an insurance contract. As such, if the insurer stipulated in the insurance clause to deduct the insurer’s share from the insurance amount payable, the insurer bears the obligation to directly pay the victim

In full view of the purport of the argument in the evidence No. 5, the defendant and C, when entering into a contract of liability insurance with doctor and hospital, and when C, the insured, is liable for damages due to medical malpractice, the defendant has agreed to compensate for the portion exceeding ten million won of his/her own charges up to the limit of 50 million won. Thus, the defendant, who is the insurer of the above insurance contract, is liable for payment only for the amount calculated by deducting ten million won of his/her own charges stipulated in the above insurance contract from the plaintiff's damages.

The defendant's argument on this part is with merit.

(B) According to the evidence Nos. 3-1 through 5, the fact that the respondent who entered into an insurance contract with the Defendant paid the Plaintiff medical expenses, etc. for the Seoul Sung Hospital and the Central University Hospital on behalf of the Plaintiff, and the Plaintiff did not claim medical expenses incurred by the hospital B from February 2, 2012 to February 13, 2012.

However, the Plaintiff’s negligence caused damage to food, etc. to the Plaintiff, and the Plaintiff was prescribed for the treatment of damage to food, and thereby caused the occurrence of a sacratitis due to the merger certificate, and the Plaintiff hospitalized in B Hospital, Seoul A, and Central University Hospital for the treatment of food damage and the sacratitis, etc. In full view of the fact that the Plaintiff was hospitalized in B Hospital, Seoul, and the National University Hospital for the treatment of sacratitis, and that the Plaintiff only claimed medical expenses, lost profits, and consolation money, and did not claim compensation for the damages incurred by the Plaintiff’s negligence. In full view of the fact that C only paid the above medical expenses, etc. for compensation for damages incurred by the Plaintiff’s negligence, and therefore, C cannot claim for the return of money equivalent to the above medical expenses, etc.

Therefore, the premise that C has the right to claim the return of the above medical expenses to the Plaintiff.

The defendant's above assertion is without merit.

F. Sub-decision

Therefore, the Defendant is obligated to pay to the Plaintiff 1,463,360 won (i.e., lost income of KRW 3,463,360 + consolation money of KRW 8,00,000 - Self-Payment of KRW 10,000) and as the Plaintiff seeks, 5% per annum under the Civil Act from February 9, 2013 to January 30, 2015, the date following the day when a copy of the instant complaint was served, which is the day when the Defendant rendered a substantial judgment, to dispute the scope of the Defendant’s obligation to perform, and 20% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the next day to the day when the payment is made.”

3. Conclusion

Therefore, the plaintiff's claim shall be accepted within the above scope of recognition, and the remaining claims shall be dismissed as without merit. Since the part against the defendant who ordered payment in excess of the above recognized amount among the judgment of the court of first instance which partially different conclusions is unfair, it shall be revoked and the plaintiff's claim corresponding to the revoked part shall be dismissed. The defendant's remaining appeal shall be dismissed as it is without merit. It is so decided