[1] In a case where a public official inflicts a loss on another person due to an unlawful act while performing his/her duties, whether a public official who has been directly compensated for the damage acquires the right to indemnity from the State (affirmative

[2] The case holding that in case where Eul's bereaved family members filed a lawsuit against Eul et al. against Eul et al. on the ground that Eul's medical malpractice was acknowledged, and Gap paid Eul's judgment debt to Eul's bereaved family members on the ground that Eul's medical malpractice was acknowledged, Gap's compensation liability was determined, the case holding that Gap who suffered loss to other party due to the progress of his/her duties was entitled to claim compensation against the State

[1] In a case where a public official inflicts damage on another person as a result of a tort while performing his/her duties, in addition to the State’s liability for damages, a public official is liable for damages caused by a tort if he/she intentionally or by gross negligence, and a public official is not liable for damages if he/she remains in office. If a public official in office compensates the victim for damages even though he/she is not liable for damages to the victim, it constitutes a case where a person who is not a debtor pays another person’s obligation to the victim. This constitutes “a third party’s repayment” under Article 469 of the Civil Act or “a debt repayment in conformity with the concept of intention” under Article 744 of the Civil Act, and thus, the victim is not liable for return to the public official. Accordingly, it is reasonable to view that a public official who has been directly liable for damages to the State who discharges his/her obligation without his/her own contribution, barring special circumstances, acquires the right

[2] The case holding that in case where Eul et al. filed a lawsuit against Eul et al. for damages against Eul et al. due to Eul's death, and the judgment recognizing Gap et al.'s medical malpractice became final and conclusive on the ground that Gap's medical malpractice was recognized, Eul paid Eul's damages to Eul's bereaved family members, the court held that Gap paid damages to Eul's bereaved family members after the judgment against Eul's bereaved family members was held liable for damages, since Eul et al. suffered damages to Eul et al. due to the progress of performing his/her duties as a public official, and it constitutes a non-debt repayment in accordance with the concept of the intention of Article 744 of the Civil Code, and thus Eul's rights to claim damages against Eul and the bereaved family members were extinguished, and the State exempted from the obligation without its own contribution

[1] Article 2 of the State Compensation Act, Articles 469 and 744 of the Civil Act / [2] Article 2 of the State Compensation Act, Article 744 of the Civil Act

[1] Supreme Court en banc Decision 95Da38677 delivered on February 15, 1996 (Gong1996Sang, 771)

Plaintiff (Law Firm Sejong, Attorneys Gyeong Jae-in et al., Counsel for the plaintiff-appellant)

Korea

Seoul High Court Decision 2011Na96378 decided June 7, 2012

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

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

Upon examining the reasoning of the judgment below in light of the records, it is reasonable that the court below's determination that recognizing the plaintiff's liability for damages in the preceding lawsuit on the grounds as stated in its reasoning is difficult to view it as a premise that the plaintiff was negligent in a state of gross negligence without due care to the extent that the plaintiff was intentional or almost intentional in the performance of duty, and contrary to the allegations in the grounds of appeal, there is no

2. Regarding ground of appeal No. 2

Examining the reasoning of the judgment below in light of the records, it is just to conclude that the court below's filing of the claim for reimbursement of this case with the assertion that the plaintiff did not assert that he was a public official in the preceding lawsuit and received a judgment ordering monetary payment since he was merely a progress in treating the non-party who was a public official and his bereaved family members, does not violate the principle of good faith or the principle of prohibition of self-reliance, and it does not err in the misapprehension of the legal principle as to the principle of good faith or the principle of prohibition of self-reliance

3. As to the grounds of appeal Nos. 3 and 4

A. In a case where a public official causes damage to another person by a tort while performing his/her duties, in addition to the State’s liability for damages, a public official’s individual shall be liable for damages caused by a tort if he/she intentionally or by gross negligence. However, if a public official remains in a progress, he/she shall not be liable for damages (see Supreme Court en banc Decision 95Da38677, Feb. 15, 1996). As such, if a public official compensates the victim for damages even though he/she is not liable for damages against the victim, it constitutes a case where a person other than an obligor has discharged another person’s obligation. This constitutes “a third party’s repayment” under Article 469 of the Civil Act or “non-payment in conformity with the concept of intention” under Article 744 of the Civil Act, and thus, the victim is not liable to return to the public official. Accordingly, it is reasonable to deem that a public official who has been directly compensated for damages to the State without his/her own contribution, barring any special circumstances.

B. The lower court determined that: (a) the Plaintiff’s medical corporation provided medical treatment to the Nonparty from October 24, 2005 to November 11, 2005; and (b) the Nonparty died on the fright blood transfusion on December 23, 2005; (c) the Nonparty’s bereaved family members filed a lawsuit seeking compensation for damages against the Plaintiff and the medical corporation by asserting that the Nonparty died from the Plaintiff’s medical malpractice; and (d) the court determined that the Plaintiff’s failure to conduct the blood cultivation test and the medical malpractice at the third generation household, and that “the Plaintiff and the medical corporation would pay the Nonparty’s total amount of KRW 218,048,314 to the Nonparty’s bereaved family members; and (c) the Plaintiff paid the Nonparty’s total amount of KRW 218,048,314 to the Nonparty’s 11, 2010 to the Nonparty’s bereaved family members; and

C. Examining these facts in light of the legal principles as seen earlier, the Plaintiff was not liable to compensate the Nonparty and its bereaved family members because it was actually damaged by the process of performing his duties as a public official, and thus, the Plaintiff was not liable to compensate the Nonparty and its bereaved family members. This constitutes a non-debt repayment in accordance with the concept of intention under Article 744 of the Civil Act, and thus, the Nonparty and their bereaved family members extinguished the right to claim damages against the Defendant, and thereby, the Defendant was discharged from the Defendant’s debt without his own contribution. Accordingly, the Plaintiff acquired the right to claim reimbursement against the Defendant.

Although the reasoning of the court below is somewhat insufficient, the conclusion that recognized the plaintiff's right to indemnity against the defendant is just, and contrary to the allegations in the grounds of appeal, there is no error of law by misunderstanding the legal principles on the acquisition of the right to indemnity or the subrogation of the

4. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim So-young (Presiding Justice)