[1] The legal nature of the victim's direct right to claim under Article 724 (2) of the Commercial Act (=the claim for damages) and the scope of the victim's direct right to claim damages payable by the insurer

[2] In a case where Gap (the 4 years of age at the time of the accident) claimed damages against the Korean Federation of Community Credit Cooperatives which concluded a mutual aid agreement on the liability for damages for children's play facilities with Eul and Eul, while using play equipment at the play room operated by Eul (the 4 years of age at the time of the accident), the case holding that the court below erred by misapprehending the legal principles as to the scope of the liability for damages that the insurer bears upon the direct claim of the victim, although the Korean Federation of Community Credit Cooperatives has asserted that "the Korean Federation of Community Credit Cooperatives bears the liability within the limit of the amount of the injury and the amount of the injury where the accident occurred and the subsequent disability occurred pursuant to the general terms and conditions on the liability for damages for children's play facilities under the mutual aid agreement

[1] The legal nature of the victim’s right of direct action pursuant to Article 724(2) of the Commercial Act is that the insurer concurrently takes over the insured’s obligation to compensate for damages against the victim, and the victim is the right to claim damages against the insurer, and the insured’s right to claim damages against the insurer is not the right to change or equivalent to the insured’s right to claim insurance against the insurer. However, the damage liability borne by the insurer based on the victim’s direct claim is based on an insurance contract,

[2] In a case where Gap (the 4 years of age at the time of the accident) claimed damages against the Korean Federation of Community Credit Cooperatives which concluded a mutual aid agreement on the liability for damages for children's play facilities with Eul and Eul, while using play equipment at the play room operated by Eul (the 4 years of age at the time of the accident), the case held that the court below erred by misapprehending the legal principles as to the scope of the liability for damages borne by the insurer according to the direct claim of the victim, on the ground that the Korean Federation of Community Credit Cooperatives has asserted that "the Korean Federation shall bear the liability within the limit of the amount of the injury grade and the disability grade where the accident occurred and the subsequent disability occurred pursuant to the general terms and conditions on the liability for damages for children's play facilities under the mutual aid agreement, and if the limit of the above terms and conditions falls within the limit of the insurer's liability under the mutual aid agreement, the damage liability borne by the Korean Federation according to the direct claim of the victim shall be acknowledged within the limit of the insurer's liability.

[1] Article 724 (2) of the Commercial Act / [2] Article 724 (2) of the Commercial Act

[1] Supreme Court en banc Decision 2012Da86895, 86901 Decided May 18, 2017 (Gong2017Sang, 1268), Supreme Court Decision 2013Da71951 Decided September 4, 2014

Plaintiff 1 and two others

Defendant 1 and one other (Law Firm Nomination, Attorney Jeong Young-young, Counsel for the defendant-appellant)

Jeonju District Court Decision 2017Na10407 decided June 7, 2018

The part of the judgment below against Defendant 1 in the judgment below is reversed, and that part of the case is remanded to the Jeonju District Court Panel Division. Defendant 1’s appeal is dismissed. The costs of appeal against Defendant 1 in the appeal are assessed against the above Defendant.

The grounds of appeal are examined.

1. As to the grounds of appeal Nos. 2 and 3

According to the reasoning of the lower judgment and the reasoning of the first instance judgment partially admitted by the lower court, since the instant accident occurred due to Defendant 1’s negligence, the lower court determined that Defendant 1 and the Defendant community credit cooperatives’ federation (hereinafter “Defendant community credit cooperatives”) jointly and severally liable for the damages suffered by the Plaintiffs. Defendant 1, who was the operator of the instant playground operated at a fee, had the duty to take measures to prevent the occurrence of the instant accident due to the Plaintiff 3, who was four years of age at the time of the instant accident, was not able to use the play equipment, or the installation of a sufficient safety device, etc., even though it was negligent in taking measures to prevent the occurrence of the instant accident.

Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court did not err in its judgment by failing to exhaust all necessary deliberations, or by misapprehending the legal doctrine on tort and causation, as otherwise alleged in the grounds of appeal.

2. Regarding ground of appeal No. 1

A. The legal nature of a direct claim that is recognized as a victim under Article 724(2) of the Commercial Act is that the insurer concurrently takes over the insured’s obligation to compensate for damages against the victim, and the victim is the right to claim damages against the insurer, and the insured’s right to claim damages against the insurer is not a right equivalent thereto. However, the damage liability that the insurer bears upon the victim’s direct claim is based on an insurance contract, and thus, should be acknowledged within the scope of the insurer’s liability limit under the insurance contract (see Supreme Court Decisions 2013Da71951, Sept. 4, 2014; 2012Da86895, May 18, 2017; 2012Da86901, May 18, 2017).

B. The court below acknowledged that the accident of this case occurred by Defendant 1’s negligence as above, and that Defendant community credit cooperatives concluded a mutual aid agreement for children’s play facility compensation liability with Defendant 1 as compensation for KRW 100 million per capita (hereinafter “instant mutual aid agreement”), and determined that Defendant community credit cooperatives, as an insurer, is obligated to pay damages to Plaintiff 3 for the total amount of KRW 55,410,871, such as daily income, medical expenses, consolation money, etc., and damages for delay, jointly with Defendant 1.

C. However, the record reveals the following facts.

(1) The Defendant community credit cooperative defense to the effect that “the Defendant community credit cooperative,” through the statement of reasons for appeal (Supplementary) on December 26, 2017 at the first day of pleading in the lower court, stated that “the Defendant community credit cooperative shall be liable within the limit of the amount of injury and the amount of mutual-aid according to the degree of injury and the grade of disability where the personal injury and the subsequent disability were incurred in accordance with Article 10 and [Attachment 1] and [Attachment 2] of the General Terms and Conditions on Liability for Compensation of Child

(2) Article 10(1) of the above Terms and Conditions provides that the Defendant community credit cooperative shall pay mutual aid money to the extent of the amount set forth in [Attachment Table 1] in the case of injury caused by personal injury for the damage of the victim, and the amount set forth in [Attachment Table 2] in the case of injury caused by personal injury, and the amount set forth in [Attachment Table 2] in the case of the injury caused by the injury,

(3) Pursuant to Article 10 of the above Terms and Conditions, the limit of the amount to be deducted by injury grade shall be from 600,000 to 15,00,000 (Grade 14), and [Attachment 2] shall be divided into the limit of the amount to be deducted by injury grade (Grade 14 to 80,000,000 (Grade 1).

D. Examining this in light of the aforementioned legal principles, the defense of the Defendant community credit cooperative can be deemed as a defense regarding the insurer’s liability limit under the mutual aid agreement, and if the limit prescribed in Article 10 and [Attachment 1] and [Attachment 2] of the above terms and conditions falls under the insurer’s liability limit under the mutual aid agreement of this case, the Defendant community credit cooperative’s liability for damages to be borne by the Defendant community credit cooperative upon the victim’s direct claim should be acknowledged within

Therefore, the lower court should have determined whether or not the provision of the above terms and conditions stipulated the insurer’s liability limit under the mutual aid agreement of this case and determined the legitimacy or extent of recognition of the aforementioned defense by Defendant community credit cooperatives. Nevertheless, while calculating the amount of damages suffered by the Plaintiffs in relation to the scope of the damages liability owed by Defendant community credit cooperatives, the lower court did not render any judgment on the defense regarding the limit of liability of the Defendant community credit cooperatives. In so determining, the lower court erred by misapprehending the legal doctrine on the scope of the damages liability owed by the insurer according to the victim’s direct claim, thereby omitting judgment

3. Grounds for the defendants' overlapping relations

Defendant community credit cooperative is an insurer who concurrently takes over Defendant 1’s damage liability under the instant mutual aid agreement. As such, Defendant community credit cooperative’s damage liability and Defendant 1’s damage liability, the insurer, are jointly and severally liable (see, e.g., Supreme Court Decisions 92Da2530, May 11, 1993; 2010Da53754, Oct. 28, 2010). However, the lower court ordered the Defendants to jointly pay the damages as indicated in its holding. However, it points out that the lower court’s measures are inappropriate on the premise that the Defendants are jointly and severally liable.

4. Conclusion

The part of the lower judgment against the Defendant community credit cooperatives is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. Defendant 1’s appeal is dismissed, and the cost of appeal by Defendant 1 is assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jo Hee-de (Presiding Justice)