(영문) 서울중앙지방법원 2017.8.17. 선고 2016나73759 판결

1. Of the judgment of the court of first instance, the part against the plaintiff regarding the conjunctive claim amounting to order payment is revoked.

The defendant shall pay to the plaintiff 4,381,452 won with 5% interest per annum from November 30, 2013 to August 17, 2017, and 15% interest per annum from the next day to the day of full payment.

2. The plaintiff's remaining appeal is dismissed.

3. 3/4 of the total costs of litigation shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

4. The part concerning the payment of money under paragraph (1) may be provisionally executed.

Purport of claim and appeal

1. Purport of claim

First, the defendant shall pay to the plaintiff 17,890,00 won with 5% interest per annum from November 30, 2013 to the delivery 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. Preliminaryly, the defendant shall pay to the plaintiff 8,945,00 won with 5% interest per annum from November 30, 2013 to the delivery 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

Of the judgment of the first instance, the part of the conjunctive claim shall be revoked. The defendant shall pay to the plaintiff 8,945,00 won with 5% interest per annum from November 30, 2013 to the date of this judgment, and 15% interest per annum from the next day to the date of complete payment.

Reasons

1. Scope of the judgment of this court;

In the first instance court, the Plaintiff primarily claimed reimbursement based on the insurer’s subrogation right under Article 682 of the Commercial Act, and the first instance court dismissed both the primary claim and the conjunctive claim based on double-insurance. Accordingly, the Plaintiff appealed only on the conjunctive claim in the first instance court’s judgment, and the subject of this court’s judgment is limited to the conjunctive claim.

2. Basic facts

A. The Daesung Industrial Co., Ltd. (hereinafter referred to as the "Mosung Industrial Co., Ltd.") newly constructed and operated DBT department stores, etc. The Plaintiff and the Plaintiff, an insurance company, entered into a comprehensive property insurance contract with the content of comprehensive property risk security, machinery risk security, business suspension security, liability security, etc. (hereinafter referred to as "Class 1 insurance contract"), and the main content of Section 4 of the first insurance contract is as follows:

○ The name of the insured: The insurance period of all lessees (company) in the Daesung Industries (State) (D-CUBE CITY)/D-CUBE CITY / the ○ insurance period: the maximum amount of compensation [liability of the owner of the facility] from August 1, 2012 to August 1, 2013: the maximum amount of compensation (liability of the owner of the facility): the application of the maximum amount of compensation; the guarantee amount of 3,00,000,000 won per unit of accident: the legal liability for the third party who is liable for the loss caused by an accident caused by the ownership, management, and use of facilities owned by the insured at the location specified in the insurance policy: 10,000 won per unit of accident:

B. On April 18, 2013, the Daesung Industry entered into a contract for the establishment of facilities in the area of Hansung 63cc. (hereinafter “Korea-Japan 63cc.”), setting the contract term as two years from May 1, 2013 to April 30, 2015 and the contract amount as KRW 156,200,000 (hereinafter “instant contract”).

C. After that, Han 63 City Co., Ltd. entered into a contract with the Defendant, an insurance company, for the instant contract on products liability (hereinafter referred to as “second-party insurance contract”) containing the contractor’s liability, product liability, etc., and the main contents of the second insurance contract are as follows.

(B) The name of the insured: (a) the management of buildings and various facilities; (b) the contractor’s liability for the maintenance of the buildings and various facilities; and (c) the insurance period of the risk of completion of the works (limited to QB) : the maximum amount of compensation: 300,000,000 won per accident per 1 accident, a large-scale large-scale large-scale large-scale large-scale large-scale large-scale large-scale large-scale large-scale medium-scale large-scale large-scale medium-scale large-scale medium-scale medium-scale large-scale medium-scale medium-scale total-scale total-scale total-scale

D. (1) On May 28, 2013, around 16:12, 2013, there was an accident that has passed water on the floor due to the malfunction operation of the 5th floor automatic afforestation system of the wall-to-story department store located in Guro-gu Seoul Metropolitan Government, and the employees of the large industry cut off landscaping trees through the operation of valves connected to the 5th floor landscape water pipelines.

2) However, in order to block the 5th floor landscape trees with knowledge of the fact that the 5th floor landscape trees had already been cut off, an employee in Hancheon 63 City operated the above pipe (hereinafter referred to as the “accident valve”) using tools, with which no loss has been inflicted, after moving to the 4th floor PS room in order to block the 5th floor landscape trees. In the process, the accident valve was opened due to the negligence of the above employee.

3) The instant accident valve pipe was exposed to the 4th tent by not only the 5th floor landscaped water pipe but also the pipe that does not use any longer. As a result, as the accident valve was opened, a large quantity of water was leaked and water was destroyed from the 4th tent (hereinafter “instant accident”).

E. The instant accident caused damages equivalent to KRW 17,990,00 in total to the four-story shop occupants of the diverse department store, and the Plaintiff paid KRW 17,890,000,000 as insurance proceeds, after deducting KRW 100,000 from the victim’s damages under the insurance contract No. 17,99,00 on November 29, 2013 and the Plaintiff paid KRW 17,890,00 as insurance proceeds.

[Ground of recognition] Facts without dispute, Gap evidence 1 through 7, 9, Eul evidence 1 to 4, the purport of the whole pleadings

3. The plaintiff's assertion

Han 63 City is the insured of the first insurance contract as well as the date of the second insurance contract, as well as the operation of the facilities of DNA Cenbro department department, and as a controlled entity. Accordingly, the first and second insurance contracts are insurance contracts that compensates for losses suffered by Han 63 City, the insured of the accident in this case, and they are double insurance since the total insured amount exceeds the amount of damages suffered by the victim.

On the other hand, the instant accident is an accident caused by the total negligence of the Han 63 City employees, which caused a large quantity of water leakage by misunderstanding the accident valve as a landscaped water valve for the fifth floor and opening it by negligence in the course of operation.

Therefore, the defendant is obligated to pay to the plaintiff the insurance money to be borne by the defendant pursuant to Articles 725-2 and 672(1) of the Commercial Act and damages for delay.

4. Determination

A. Whether it constitutes double insurance

1) Whether Korea-Japan 63 Symat City is also the insured of the first insurance contract

The judgment of the court below is justified in light of the legal principles as seen earlier.

Furthermore, as to whether Korea-China 63cc. also constitutes the insured of the first insurance contract, the first insurance contract is determined as the insured, the lessee of the Korea-Japan Doctrine department stores, etc., and the Dictrie Doctrine department stores, etc. (limited to ordinary maintenance and repair business). On April 18, 2013, the Korea-Japan 63cc. concluded the instant contract on the operation and management of the facilities of Dictrie department stores, etc. between the Daesung 63cc., and performed its operation and management business from that time. Thus, the Korea-Japan 63cc. is the insured of the first insurance contract.

2) Whether double insurance constitutes double insurance, and whether the Plaintiff’s right to indemnity against the Defendant is exercised

If two liability insurance contracts do not share the purpose of insurance, i.e., the insured interest and the content and scope of the insurance accident, but overlap with a considerable part, and if the accident involved in the overlapping insured interest constitutes an insurance accident related to the overlapping insured interest, such multiple liability insurance contracts constitute duplicate insurance under Article 725-2 of the Commercial Act to the extent that the insured, the insured interest, the insurance accident, and the insurance period overlap (see, e.g., Supreme Court Decision 2009Da42819, Dec. 24, 2009).

In light of the following circumstances, the insured benefit of the first insurance contract can be seen as a liability insurance contract, i.e., Section 4 of the first insurance contract and Section 2 of the second insurance contract. The insured benefit of the second insurance contract is to compensate for losses caused by the insured’s legal liability for damages caused by accidents such as ownership, management, and DNA department stores, etc., and third parties, which are caused by such accidents. The insured benefit of the second insurance contract is to compensate for damages caused by accidents such as management, maintenance, and repair of buildings and various facilities such as DNA department stores, etc., and the insured is to compensate for damages caused by accidents such as the above 63 cc.'s negligence related to the above business. In light of the first insurance contract and the second insurance contract, the insured benefit of the second insurance contract is to be covered by the insurance contract of the second insurance contract and the second insurance contract of the second insurance contract and the second insurance contract are to be covered by the insured’s liability for damages caused by accidents such as operation, management, and management, etc. of DNA department stores, and the insurance contract of the second insurance contract.

(b) Right to indemnity under double insurance;

1) The scope of exercise of the right to indemnity

In light of the background of the instant accident, the aforementioned evidence, and evidence evidence Eul evidence No. 2, the instant accident was due to the defect in the installation of the wall landscaping valve installed on the fifth floor of the department store in the Daesung industry, which is connected with the hotel main pipelines of the instant building, and the accident valve pipe pipe pipe was not dried up by plrgs and caps, etc., and the accident valve was not used without any instruction such as prohibition of operation, etc. on the above pipe valve, and it was reasonable to view that the accident was caused not only by the negligence on the part of Hansung industry, which is the facility management company, but also by the negligence on the part of Han City 63 cc., which was not notified in advance, and the fault on the part of Hansung Industrial at the time of the instant accident, or by inquiring about the large industry, it is reasonable to 0% of the landscape tank of the instant accident as well as by the negligence on the part of the 63rd floor in the process of opening the landscape valve, without accurately identifying the location of the 4th floor.

On the other hand, the Plaintiff, the insurer of the first insurance contract, is not allowed to claim reimbursement against the Defendant, who is the insurer of the second insurance contract, to the part to be borne by the Plaintiff as the insurer of the second insurance contract. Thus, the Plaintiff’s right to indemnity based on double insurance is limited to the part to be borne by the Defendant, which is not the subject of the re-compensation (see, e.g., Supreme Court Decision 2014Da4202, Jul. 23, 2015).

2) Scope of indemnity amount

A) Article 672(1) of the Commercial Act, which applies mutatis mutandis under Article 725-2 of the Commercial Act, provides that in the case of double insurance, an insurer shall be jointly and severally liable within the scope of each insurer’s insured amount, and in this case, each insurer’s liability for compensation is based on the ratio of each insurer’s insured amount. However, such a provision of the Commercial Act is not construed as a mandatory provision. Therefore, each insurance contract party may provide for the method of liability for compensation of the insurer for double insurance or the method of sharing liability between the insurers through each insurance contract or terms (see, e.g., Supreme Court Decision 200Da30127, May 17, 2002).

B) According to the overall purport of the statement and arguments in the instant case: (a) in the case of double insurance under Article 22(1) of the Clause of the second insurance contract, where there are different contracts (including mutual-aid contracts that ensure the same risk as the risk guaranteed by this contract) with respect to the allocation of insurance proceeds, if the total amount of compensation liability calculated by deeming each contract to have no other contract for each contract exceeds the amount of damages, the company shall compensate for losses according to the ratio of the total amount of the liability for compensation calculated under this contract to the total amount of the liability for compensation under this contract." Therefore, the Defendant shall bear the amount calculated in accordance with the formula of the total sum of the insurance proceeds (amount of liability for compensation) calculated according to the double insurance charge under X-2 insurance contract with contributions to double insurance / the amount of insurance proceeds (amount of liability for compensation) calculated according to the 1 and 2 insurance contracts with no other contract.

According to the above, the insurance money (liability amount) calculated by the first insurance contract is KRW 17,890,000 (amount of damage of the victim 17,990,000) - self-paid KRW 100,000 (amount of damage of the victim 17,990,000) and the insurance money (liability amount) calculated by the second insurance contract is KRW 16,990,000 (amount of damage of the victim 17,990,000 - self-paid KRW 1,000). Thus, the Defendant’s share of the Defendant is ultimately KRW 8,762,904 (amount of damage of the victim 17,990,000) x KRW 16,90,00 (17,890,000 + KRW 16,990,000).

C) Sub-decision

Therefore, the Defendant is obligated to pay to the Plaintiff 4,381,452 won (i.e., 8,762,904 won x 1/2) equivalent to 50% of the negligence ratio of Han 63cc., which is not the subject of re-compensation among the Defendant’s share of double insurance charges (i.e., 5% per annum under the Civil Act from November 30, 2013 to August 17, 2017, which is the day following the date of payment of the Plaintiff’s insurance money, and damages for delay calculated at the rate of 15% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the following day to the day of full payment.

5. Conclusion

Therefore, the plaintiff's conjunctive claim shall be accepted within the scope of the above recognition and the remainder of the claim shall be dismissed without merit. Since the part of the conjunctive claim in the judgment of the court of first instance is unfair with a different conclusion, the plaintiff's appeal is partially accepted, and it is revoked, and the payment of the above money is ordered against the defendant, and the remaining appeal by the plaintiff is dismissed as it