[1] Whether a family member living together of the insured is included in a third party as stipulated in Article 682 of the former Commercial Act (negative), and whether the insurer may exercise the right of subrogation against a third party who does not belong to a strong and economic community living body, such as the insured’s family member living together (affirmative)

[2] In a case where Eul insurance company Eul, which entered into a fire insurance contract with Gap company, paid insurance money under the insurance contract to Gap company due to a fire that occurred in a building which is an insurance object, and sought reimbursement against Byung organization which performs the business of maintaining and managing buildings entrusted by the meeting of the representative of the management body to which Gap company belongs, the case holding that Byung's organization is not included in the third party under Article 682 of the former Commercial Act even though Eul's organization cannot be viewed as not exercising the right of subrogation against Byung's organization because it does not belong to a personal and economic community which has a strong unity to the extent that it can be evaluated as the insured company Gap company and family members living together with Byung

[1] Article 682 of the former Commercial Act (Amended by Act No. 12397, Mar. 11, 2014) / [2] Article 682 of the former Commercial Act (Amended by Act No. 12397, Mar. 11, 2014)

[1] Supreme Court Decision 2005Da49027 Decided October 26, 2007

Dongbu Fire Marine Insurance Co., Ltd. (Attorneys Park Sung-won et al., Counsel for the plaintiff-appellant)

Postal Culture Support Office, Inc. (Law Firm International Law Firm, Attorneys Formation System, et al., Counsel for the defendant-appellant)

Busan District Court Decision 2013Na42592 Decided September 4, 2014

The judgment below is reversed, and the case is remanded to Busan District Court.

The grounds of appeal are examined.

1. As to the grounds of appeal Nos. 2 and 3

A. An insurer may exercise the right of a policyholder or the insured against a third party other than the insured in accordance with the legal doctrine of subrogation, but it is anticipated that if the insured acquires the right to claim compensation against his/her own family living together, it will be neglected without exercising the right to claim compensation. Nevertheless, if the insurer permits the insured to acquire and exercise the right by subrogation, it would result in the same result as the insured would not receive the insurance money in fact and would substantially undermine the effectiveness of the insurance system. Therefore, the insured’s family living together should not be included in a third party as stipulated in Article 682 of the former Commercial Act (amended by Act No. 12397, Mar. 11, 2014; hereinafter “former Commercial Act”). However, it cannot be said that the insurer may not exercise the right of subrogation by the insurer against a third party who does not belong to a strong personal and economic community life, such as the insured’s family living together (see Supreme Court Decision 2005Da49027, Oct. 26, 2007).

B. The lower court determined that, in full view of the following: (a) the Defendant’s maintenance and management of the instant building as management expenses received from sectional owners, including the Postal Construction Co., Ltd. (hereinafter “Postal Construction”), if the Plaintiff received indemnity from the Defendant, the Defendant did not receive insurance money to the extent of the management expenses additionally borne by the Postal Construction, which is the insured; (b) the Postal Construction instructed and supervised the Defendant’s maintenance and management of the instant building as the principal member of the management body meeting; (c) the Plaintiff seeking reimbursement against the Defendant who performed maintenance and management duties in a position equivalent to the Postal Construction that is the insured; and (c) if the Defendant recognizes the Defendant’s responsibility for paying indemnity, the Defendant did not additionally bear management expenses, taking account of the fact that the Postal Construction is not included in the third party under Article 682 of the former Commercial Act.

C. However, according to the reasoning of the lower judgment, it is merely one of the sectional owners of the instant building, and even if the Plaintiff additionally bears management expenses due to the Plaintiff’s claim for reimbursement against the Defendant, it is difficult to view that the Defendant would not actually receive insurance money. Moreover, solely on the ground that the Postal Construction is involved in the Defendant’s maintenance and management of the instant building in the position of the representative of the management body, it cannot be deemed that the Defendant is performing the said duties in a position equivalent to the Postal Construction. The Defendant paid corporate tax upon obtaining a unique number from the National Tax Service, and maintained the management contract with the sectional owners, or as the subject of independent rights and obligations, such as concluding a management contract with or employing employees, after the change of the representative.

D. Therefore, in light of the above legal principles, the defendant does not belong to the status-based and economic community which has a strong unity to the extent that the defendant can be evaluated as the insured person and his family members living together, and in light of the above legal principles, the plaintiff cannot be deemed as not exercising the right of subrogation against such defendant. Nevertheless, the court below erred by misapprehending the legal principles on subrogation of the insurer under Article 682 of the former Commercial Act, which affected the conclusion of the judgment, and by misapprehending the legal principles on subrogation of the insurer under Article 682 of the former Commercial Act.

2. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices

Justices Lee Ki-taik (Presiding Justice)