(a) In a case where a Korean Army physician, who drives a Korean Army on the part of an individual's automobile in preparation for training, reported a traffic accident again to the training area of the Korean Army, whether the driver's act of driving a Korean Army on the part of the Korean Army constitutes an act of performing his duties under Article 2 of the State Compensation

(b) Where a person liable to the State and joint tort compensates for damages to a person who is not entitled to claim damages under the proviso of Article 2 (1) of the State Compensation Act, whether he exercises the right to indemnity against the State;

A. "A public official is required to perform his/her duties" under Article 2 of the State Compensation Act includes acts within the scope of his/her duties, acts incidental to his/her duties, or acts incidental to his/her duties, which are closely related to his/her duties. On the other hand, when the Army Major was involved in the military personnel belonging to the same unit as his/her back seat, and in preparation for the training scheduled to be conducted from the next day, he/she was involved in a traffic accident during his/her counter-inspection training area, even if he/she was driven by the erroneous land of his/her own possession, it should be deemed that the above driving act is closely related to his/her duties to perform the pre-inspection duty in the training area assigned to him/her.

B. According to the proviso of Article 2(1) of the State Compensation Act, when a soldier, civilian employee, etc. was killed in action or on duty due to an act related to his/her performance of duties, etc., the State Compensation Act or the Civil Act provides that a person who is entitled to receive compensation such as accident compensation, survivor pension, pension for wounds, etc. shall not be entitled to claim compensation pursuant to the provisions of other Acts and subordinate statutes. Therefore, it is not allowed to exercise the right to claim compensation against the State directly, as well as to exercise the right to

Article 2 (1) of the State Compensation Act

A. Supreme Court Decision 87Meu1163 delivered on March 22, 198 (Gong1988,676) (Gong1991,70 delivered on November 13, 1990). Supreme Court Decision 83Meu500 delivered on June 28, 1983 (Gong1983,1142) (Gong1992,985) 93Da14691 delivered on October 8, 1993

Maritime Insurance Co., Ltd., Counsel for the plaintiff-appellant

Korea

Supreme Court Decision 91Da12738 delivered on February 11, 1992

Seoul High Court Decision 92Na14214 delivered on December 1, 1993

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

On the first ground for appeal

According to the reasoning of the judgment of the court below, the court below rejected the above non-party 2's judgment on the ground that the non-party 1 was on the ground that the non-party 3 was on the part of the above non-party 4's personal duty and the non-party 4's non-party 1's non-party 1's non-party 1's non-party 1's non-party 2's non-party 2's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 4's non-party 1's non-party 4's non-party 1's non-party 1's non-party 1's non-party 1's non-party 3's non-party 4's non-party 1's non-party 3's non-party 4's non-party 1's non-party 4's non-party 1's non-party 3's non-party 4's non-party 2's non-party 2's damages.

However, "A public official is subject to performance of his duties" under Article 2 of the State Compensation Act includes acts within the scope of his duties, or acts incidental to his duties, which are closely related to his duties (see, e.g., Supreme Court Decision 87Meu163, Mar. 22, 1988). Thus, as the court below duly established, if the above non-party 1 had carried the above non-party 2 on the back of his own part and carried the above non-party 2 on the front part of his own part, and the accident of this case was occurred while he was living in the front part of his training area for the night and reading training for the first time after the day after the day after the day after the day when the above non-party 1 had been scheduled to carry the above non-party 2, the above non-party 1's driving act is closely related to his duties to perform the pre-inspection duty in the training area. Thus, the above non-party 1's act is not related to the plaintiff's act of performance of duties.

On the second ground for appeal

When the State or local governments exercise public authority and inflict damages on others by intention or negligence in violation of the statutes, the State or local governments shall be liable to compensate for the damages under Article 2 (1) of the State Compensation Act, and in the event of the application of Article 2 (1) above, the provisions of Article 756 of the Civil Act concerning the employer's liability for compensation shall be excluded (see Supreme Court Decision 75Da300 delivered on May 27, 1975). In addition, according to the records, there is no evidence to recognize that the above non-party 1 controlled the operation, such as any instruction or management concerning the operation, or that the non-party 1 took advantage of its operational benefits, the defendant shall not be in the status of an operator under the Guarantee of Automobile Accident Compensation Act. Accordingly, there is no reason to argue that the court below erred in the judgment on the premise that the defendant is liable for employer under Article 756 of the Civil Act or the operator under the Automobile Accident Compensation Act.

On the third ground for appeal

According to the proviso of Article 2 (1) of the State Compensation Act, in cases where a soldier, civilian employee, etc. was killed in action or on duty due to an act in relation to the performance of his/her duties, etc., the State Compensation Act or the Civil Act provides that when compensation such as accident compensation, survivor's pension, pension for wounds, etc. can not be paid pursuant to the provisions of other Acts and subordinate statutes, he/she cannot directly exercise his/her right to claim compensation against the State, and it is not allowed to exercise his/her right to claim compensation against the State on the ground that the person who has joint tort liability has fulfilled his/her obligation for compensation (see, e.g., Supreme Court Decision 93Da14691, Oct. 8, 1993; Supreme Court Decision 91Da12738, Feb. 11, 1992; 83Meu500

Therefore, the court below's rejection of the plaintiff's claim for reimbursement against the same purport is justified, and there is no error in the misapprehension of legal principles, such as the theory of lawsuit. The argument is without merit.

Concerning No. 4

According to the reasoning of the judgment of the court below, the court below rejected the plaintiff's claim that the above non-party 4 is liable for damages caused by the accident in this case on behalf of the above non-party 4 and his family members, as seen above, if the non-party 4 fulfilled his liability for damages caused by his own tort, and thereby, caused other non-party 4 to be exempted from liability for damages, it can only exercise the right to indemnity against the other non-party 4 within the extent of the share of liability according to the ratio of negligence in the fair perspective, and the above non-party 4 cannot be viewed as damages caused to the above non-party 4 due to the above non-party 1's tort, which is the non-party 1's joint tortfeasor, and the defendant is liable for damages caused to the above non-party 4 under Article 2 (1) of the State Compensation Act. The judgment of the court below is justified in the misapprehension of legal principles as to the compensation liability of the victim's own tort, and even if one of the joint tortfeasor bears the other's liability for damages.

In addition, according to the records (see, e.g., 441), the plaintiff's attorney at the 11st day of the hearing of the court below asserts that the above non-party 4's right acquired by the plaintiff by subrogation of the insurer is selectively claimed as the claim for indemnity against the defendant and the claim for damages due to tort. The claim amount is within the limit of KRW 60,00,000 paid by the plaintiff to the above non-party 2, and it can be known that the damages paid to three passengers of the above non-party 4 and the damages due to the damage to the car was withdrawn. Thus, the judgment of the court below is not erroneous in the misapprehension of the judgment on the damages against the above passengers and the damages due to the damage to the car. The arguments are without merit.

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

Justices Park Jong-ho (Presiding Justice)