In cases where one of the joint tortfeasors has extinguished the statute of limitations and the other joint tortfeasor has paid damages exceeding his/her share to the victim, whether the other joint tortfeasor who has paid damages can exercise the right to indemnity against the other joint tortfeasor whose liability for damages has been extinguished (affirmative)

The right to indemnity against another joint tortfeasor of the joint tortfeasor is a separate right that differs from the damage claim against the other joint tortfeasor by the victim, and the provisions of Article 421 of the Civil Act regarding the absolute validity of extinctive prescription in joint and several liability are not applicable to the joint and several liability among the joint and several obligors. Therefore, even if one of the joint and several obligors compensates the victim for damages exceeding the part of his/her liability after the extinctive prescription has expired, that joint and several liability may be exercised against the other joint and several obligors.

Articles 162(1), 421, 425, and 760(1) of the Civil Act

Supreme Court Decision 79Da1107 delivered on July 22, 1980 (Gong1980, 13072) Supreme Court Decision 96Da3791 delivered on March 26, 1996 (Gong1996Sang, 1378) Supreme Court Decision 97Da814 delivered on June 27, 197

El Fire and Marine Insurance Co., Ltd. (Attorneys Han Han-soo et al., Counsel for the plaintiff-appellant)

United States Co., Ltd. (Attorney Han-chul et al., Counsel for defendant-appellant)

Seoul District Court Decision 97Na12296 delivered on August 19, 1997

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

We examine the grounds of appeal.

The right to indemnity against the other joint tortfeasor of the joint tortfeasor is separate right that differs from the damage claim against the other joint tortfeasor of the victim (see Supreme Court Decision 96Da3791 delivered on March 26, 1996). In the joint and several liability, Article 421 of the Civil Act on the absolute validity of extinctive prescription does not apply to the joint and several liability between the joint and several obligors. Therefore, in case where one of the joint and several obligors compensates the victim for damages exceeding his portion of the joint and several liability after the extinctive prescription has expired, the other joint and several obligors may exercise the right to indemnity against the other joint and several obligors.

Therefore, the judgment of the court below that held that the plaintiff who paid insurance money to the victim as the insurer of one joint tortfeasor was acquiring the right to indemnity against the defendant who is another joint tortfeasor by subrogation of the insurer under Article 682 of the Commercial Act is justifiable. We cannot accept the argument that in the event the defendant's liability for damages already extinguished at the time of payment of insurance money, the joint tortfeasor cannot exercise the right to indemnity because there is no obligation to be jointly exempted, and the precedents cited in the grounds of appeal are inappropriate to be invoked in the

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 Final Young-young (Presiding Justice)