(영문) 대법원 2018.5.11.선고 2018다201276 판결

The part of the judgment below against the defendant is reversed, and that part of the case is remanded to the Panel Division of the Seoul Southern District Court.

Reasons

The grounds of appeal are examined.

1. In relation to a joint tortfeasor, the joint tortfeasor is liable to the creditor, but there are certain portions of the joint tortfeasor's liability in relation to his/her internal relationship. The portion of the joint tortfeasor's liability is determined according to the degree of negligence of the joint tortfeasor. If one of the joint tortfeasor has paid one or more of his/her share of liability and has obtained joint exemption from liability, he/she may exercise the right to indemnity against the other joint tortfeasor according to the ratio of the share of liability (see Supreme Court Decision 2000Da69712, Sept. 9, 2002). Therefore, when the insurer of the insurance contract, who is the insured of one joint tortfeasor, pays insurance money to the other joint tortfeasor pursuant to Article 682 of the Commercial Act, and the insured's right to indemnity against the other joint tortfeasor, who is acquired as the insured pursuant to Article 682 of the Commercial Act, is established within the scope in proportion to the portion of the joint tortfeasor's liability (see Supreme Court Decision 2010Da67074, Nov. 25, 20

Meanwhile, the same reason as repayment or set-off, which achieves the purpose of a claim among the vicarious debtors jointly and severally liable, is limited to an absolute effect on all the debtors, but other reasons arise in relation to relative effect. Thus, even if the victim renounced his/her right to claim damages against one of the debtors or declared his/her intent to exempt him/her from his/her obligation, it cannot be deemed that the other debtors are effective (see Supreme Court Decisions 93Da6560, May 27, 1993; 2008Da97218, Sept. 16, 2010).

2. After finding the facts as stated in its holding, the lower court determined that: (i) the instant accident in which the victim was injured is concurrently caused by negligence that neglected the Defendant’s duty of management, supervision, and overall management and supervision of the employees E of the instant worker E, who operated the instant excavation search machine, and (ii) it is reasonable to evaluate the internal fault ratio of the instant accident as C30% and Defendant 70% in the internal fault ratio of the instant accident as Defendant 70% in the instant case, on the ground that the Plaintiff’s operation of the instant excavation search machine, which was tamping with the secondary caution.

Furthermore, in determining the scope of the Plaintiff’s right to indemnity, the lower court calculated the amount of KRW 387,170,605 in total after deducting 40% of the fault ratio of the victim from damages caused by the victim’s injury, and determined to the effect that the Plaintiff may claim for reimbursement of KRW 90,000,000 ( KRW 90,000 x 70%) equivalent to 70% of the amount of the said agreed amount, inasmuch as the Plaintiff paid KRW 90,000 with the agreed amount to the victim, and the victim was given a waiver of all the legal compensation and the Defendant was jointly exempted.

3. However, the lower court’s determination is difficult to accept for the following reasons.

According to the reasoning of the judgment below and the record, a written agreement and a letter of undertaking (a waiver of right) prepared by the Plaintiff at the time of paying the agreed amount to the victim include the following: “The victim shall receive 90,000,000 won from the perpetrator or the Plaintiff, who is an agent of the perpetrator, and waives the entire legal compensation. By preparing a written agreement and a written waiver of right on simple cases between the parties and the victim, the victim must not settle any dispute in the future, and the victim shall not file a double claim for industrial accident compensation.”

The judgment of the court below is based on the premise that the victim gave up the damage claim against the defendant by the agreement as above and exercises its effect to the defendant, and the amount of damages to be paid by the victim is confirmed as the above agreement.

However, it is difficult to see that the above agreement and the letter of commitment (a waiver of right) contain the content related to the damage claim against the defendant, and there is no special circumstance to deem that the victim has the effect of waiver of right against C, or that the victim has made an explicit or implied declaration of intent not to claim the damage against the defendant.

Nevertheless, the lower court determined that the Defendant may claim compensation against the Defendant even though the agreed amount paid by the Plaintiff did not amount to KRW 116,151,181 ( KRW 387,170,605 x 30%, and less than KRW 30) solely on the ground that the victim received the agreed amount from the Plaintiff and renounced the damage claim as above, the lower court held that the Defendant may claim compensation against the Defendant. In so doing, the lower court erred by misapprehending the legal doctrine on the right to indemnity among joint tortfeasors, thereby adversely affecting the conclusion

4. Therefore, the part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.