[1] Legislative intent of Article 760(2) of the Civil Act and the burden of proving causation between an individual act and a loss (=individual actor)

[2] The case holding that in case where it is not possible to accurately ascertain whether the victim who died of a three-way collision accident such as a vehicle, etc. died of such collision, one of the persons involved in the collision should actively assert and prove that there is no proximate causal relation between his act and the damage in order to escape from joint tort liability under Article 760 (2) of the Civil Code

[1] Article 760(2) of the Civil Act provides that when it is insufficient to regard the joint tort under Article 760(1) of the same Act among the cases where multiple persons’ acts concurrently result in damage, the causal relationship between each act and the occurrence of damage is legally presumed in accordance with the consideration of legislative policy to protect the victim by reducing the burden of proof. In such a case, if an individual actor proves that there is no causal relationship between his act and the occurrence of damage, the liability for damages shall be reduced to that extent.

[2] The case holding that where it is impossible to accurately ascertain whether the victim who died due to a three-way collision accident of a vehicle, etc. died due to a one of the three-way collision incidents, the damage suffered by the victim falls under the damage caused by a joint tort by the identity of the perpetrator under Article 760 (2) of the Civil Code, and the proximate causal relation between each act of the persons involved in the collision accident and the occurrence of the above damage is presumed to be legal, in order for one of them to be exempted from liability as a joint tortfeasor under the above provision, it shall be actively asserted and proved that there is no proximate causal relation

[1] Article 760 (2) of the Civil Act, Article 288 of the Civil Procedure Act / [2] Article 760 (2) of the Civil Act, Article 288 of the Civil Procedure Act

[1] Supreme Court Decision 2005Da57189 Decided February 24, 2006

Mez Fire Marine Insurance Co., Ltd. (Attorney Lee Dong-soo, Counsel for the plaintiff-appellant)

Defendant (Law Firm Mission, Attorneys Gelim et al., Counsel for the defendant-appellant)

Daejeon High Court Decision 2007Na4453 Decided October 2, 2007

The judgment of the court below is reversed, and the case is remanded to Daejeon High Court.

We examine the grounds of appeal.

1. Article 760(2) of the Civil Act is insufficient to regard it as a joint tort under Article 760(1) of the same Act, in case where multiple persons’ acts concurrently result in damage, the burden of proof is mitigated, and the causal relationship between each act and the occurrence of damage was presumed legally in accordance with the consideration of legislative policy to protect the victim. In such a case, if it is proved that an individual actor does not have a causal relationship between his act and the occurrence of damage, the liability for damages shall be reduced to its extent (see Supreme Court Decision 2005Da57189, Feb. 24, 2006).

2. According to the reasoning of the judgment of the court of first instance cited by the judgment below, the court below acknowledged the fact that, based on the employed evidence, it cannot determine whether the vehicle of the defendant driver was living at the time of the collision with the victim Nonparty 1, and as long as it is recognized that the deceased Nonparty 1 was alive at the time of the collision, it cannot be deemed that a proximate causal relation exists between the collision by the vehicle of the defendant driver and the death of the deceased Nonparty 1. Thus, the court below determined that the plaintiff's assertion was without merit without further review.

However, such determination by the court below is difficult to accept for the following reasons.

In the court below, the plaintiff argued that the defendant is liable as a joint tortfeasor under Article 760 (1) or (2) of the Civil Code.

In addition, in light of the circumstances and the result of the instant traffic accident acknowledged by the evidence admitted by the court below, it seems that the victim's victim's victim's non-party 1 operated the otob in the influence of drinking in front of the Seongdong-gu Sung-gu Sung-dong Scar Trading Co., Ltd. on the street, and caused the collision between the non-party 2 driver's vehicle and the non-party 2 driver's vehicle driven in the opposite lane due to the fault of the centering on the opposite lane, and led to the collision of the two-lanes on the road after the two-lane collision with the vehicle of the non-indicted 2 driver's vehicle in the name of the non-indicted 1, and it seems difficult to know that the accident caused the death of the above victim.

Examining the above legal principles in light of the above circumstances and records, even though damages caused the death of the above victim due to the traffic accident in this case due to the above three-dimensional collision cannot be recognized as damages due to the joint tort under Article 760(1) of the Civil Code, it may be deemed that the damages caused by the so-called "joint tort" under Article 760(2) of the Civil Code is at least the damages caused by the so-called "joint tort by the identity of the perpetrator" under Article 760(2) of the Civil Code, and therefore, the proximate causal relation between the above damages is presumed to be legal, since the defendant, the driver of the vehicle that caused the above three-dimensional collision, who is the driver of the vehicle that caused the above three-dimensional collision, does not have a proximate causal relation between his own act and the above damages.

Nevertheless, the court below held that as long as it is not recognized that the deceased non-party 1 was alive at the time of the third collision by the defendant's driver's vehicle, there is no proximate causal relation between the defendant's driver's above act and the deceased non-party 1's death, among the plaintiff's claim causes of this case against the defendant, the judgment of the court below was omitted, or the defendant's joint tort liability under Article 760 (2) of the Civil Code is judged to be erroneous in the misapprehension of legal principles as to Article 760 (2) of the Civil Code, on the premise that the plaintiff has the burden of proof as to the existence of proximate causal relation between the defendant's driving act and the damage caused by the death of the victim. The plaintiff's ground of appeal pointing this out

3. Therefore, without further review, 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 on the bench.

Justices Yang Sung-tae (Presiding Justice)