2015Na5780 Claims

M Co., Ltd

1. H stock company;

2. A stock company;

Seoul Central District Court Decision 2015 Ghana5873851 Decided October 15, 2015

March 25, 2016

April 15, 2016

1. All of the Plaintiff’s appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the court of first instance is revoked. The Defendants jointly and severally with the Plaintiff KRW 19,80,000, and the aforementioned KRW 2014.

3. From 18. to the service date of the duplicate of the complaint of this case, 5% per annum and 20% per annum from the next day to the day of complete payment.

The Plaintiff shall pay the amount of damages for delay in accordance with each ratio (the base date of the damages for delay in the first instance on March 17, 2014).

west changed to March 18, 2014.

1. Occurrence of the instant death accident and payment of insurance proceeds;

(a) The relationship between the parties;

The Plaintiff’s insurance period between the Plaintiff and the KimB, who operates the K Private Institutes, from February 18, 2013 to February 2, 2014.

18. The insurer is an insurer who has concluded a non-life insurance contract for a fixed term.

TFS Co., Ltd. (hereinafter referred to as "T") carries on the business name "P" by leasing exhibition halls in the building in Yeonsu-gu Incheon, Yeonsu-gu, Incheon, by establishing a children's play equipment, etc., at all times. Defendant H Co., Ltd. (hereinafter referred to as "Defendant H") is an insurer who has entered into a business liability insurance contract with T, and Defendant A Co., Ltd. (hereinafter referred to as "Defendant A") entered into an entrustment management contract with T on the operation of the play equipment.

B. On January 18, 2014, KimB entered the above P as a student of a private teaching institute that he/she operated on the spot study basis and entered the said P, thereby enabling students of a private teaching institute to board the play equipment.

2) Among the above PP play equipment, the Hamba Hamth Hamba (hereinafter “H”) was established. The instant play equipment had a structure where the waiting part of the atmosphere was protruding out for getting out of the Hamba as a Hamb, about 3.5 meters in height, and about 10 meters in length. At the same time, the management personnel’s Hamba was in charge of the operation of the instant play equipment, including two other Emba Ham Ham Bas, around the instant play equipment. However, at around 00, the children’s Hamba failed to take advantage of the characteristics of the Hamba’s Hamba on the date of the instant accident while waiting for getting out of the Hamba’s Hamba, and the children’s Hamba had difficulty in managing the instant Hamba on the date of the instant accident.

C. After the instant death accident, the Plaintiff: (a) around March 2014, through a damage adjusting company (DaScar Adjustment Co., Ltd.); and (b) through a damage adjusting company that the Plaintiff appointed by himself/herself (DaScar Adjustment Co., Ltd.), examined the amount of the deceased’s damages; (c) whether he/she was liable for the liability of the KimB; and (d) the internal share ratio of the joint tortfeasor (Seoul and A) involved in the instant accident. The CScar Adjustment Co., Ltd. calculated the amount of the deceased’s damages incurred by the instant accident as KRW 286,638,578; and (c) calculated the amount of damages that the KimB would ultimately bear by assessing the internal share ratio of KimB as KRW 10% among joint tortfeasors, as KRW 28,63,857.

Around that time, KimB agreed to pay KRW 20 million to the deceased’s bereaved family members and not to take a civil and criminal issue in the future. On March 17, 2014, the Plaintiff paid to the bereaved family members KRW 19,80,000 after deducting KRW 200,000,000,000, which is the insured’s self-charges under an insurance contract, from among the agreed amounts that KimB shall be paid to the deceased’s bereaved family members.

2) Meanwhile, Defendant H, the insurer of T, assessed the deceased’s amount of damages of KRW 245 million in relation to the instant accident, and paid to his bereaved family members the remainder of KRW 225 million after deducting the amount of KRW 20 million paid by the Plaintiff.

3) After that, Defendant H filed a claim for reimbursement against KimB and Defendant A, the Seoul Central District Court Decision 2014Da5109436 (2) of the Seoul Central District Court Decision 2014Ma524922), Defendant H, as the Defendant, (in accordance with the internal shares determined by H himself, the amount of KRW 29 million for Defendant HB and KRW 73,500,000 for Defendant A). Of the above lawsuit, the above court withdrawn the lawsuit against Defendant H (the instant case’s co-defendant) on March 17, 2015, and Defendant A (Co-defendant of the instant case) made a decision in lieu of Defendant H’s payment of KRW 50 million to Defendant H, which became final and conclusive due to the lack of such decision by the parties.

[Ground of recognition] Facts without dispute, Gap 1 through 6 evidence, Eul 1 evidence, Eul 29 evidence, the purport of the whole pleadings

2. The plaintiff's assertion and judgment

The plaintiff asserts that the death accident of this case occurred entirely by the negligence of only the defendants, and that the plaintiff, the insurer of KimB, who is the president of the Taekwondo Institute, paid 19.8 million won to the deceased's bereaved family members, even though there was no negligence by KimB, who is the president of the Taekwondo Institute. Accordingly, the defendants obtained profits from the deduction of the amount equivalent to the plaintiff's insurance payment while paying the amount of damages caused by the death of this case between the bereaved family members and the bereaved family members. Thus, the defendants are jointly obligated to pay 19.8 million won to the plaintiff by subrogation of the insurer under Article 724 of the Commercial Act

On the other hand, the plaintiff's claim of this case is premised on the fact that KimB was not negligent in the occurrence of the accident of this case. However, considering the above facts recognized as well, and the overall purport of the statements and arguments in Eul 24 through 29, the following circumstances recognized as a whole, namely, school children of KimB, including the deceased, shall be deemed as still within the scope of the KimB's protection. In particular, KimB shall have the duty of care to ensure that private teaching institutes do not have any manager or guardian at the time of the occurrence of the accident of this case, while children are not in a state of care at the time of the occurrence of the accident of this case, and at the time of the occurrence of the accident of this case, they contributed to KimB's negligence in the occurrence of the accident of this case, and there is no need to see that the internal share ratio between the owner and manager of the play equipment, and the owner and manager of the KimB, and there is no reason to see the plaintiff's claim to B without any fault.

3. Conclusion

Therefore, the plaintiff's claim of this case shall be dismissed as it is without merit, and the judgment of the court of first instance is just in conclusion, and the plaintiff's appeal is dismissed.

Justices Kim Sung-soo

Mobilization of Judges

Judges Cho Jae-dae

1) The amount includes 100,000 won of T’s own shares.