2016Da260950 Claims

A Stock Company

B

Busan High Court (Chowon) Decision 2015Na22598 Decided September 29, 2016

April 27, 2017

The part of the judgment of the court below against the defendant regarding the claim for indemnity shall be reversed, and that part of the case shall be remanded to Busan High Court.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

The lower court determined that the Plaintiff and the Defendant are liable for damages in relation to the instant accident, on the ground that the instant accident caused the death of E (hereinafter referred to as “the deceased”), a worker employed by the Defendant, was concurrent between the Plaintiff’s negligence and the Defendant’s violation of the duty of safety consideration as an employer, based on the circumstances indicated in its reasoning, comprehensively taking into account the adopted evidence.

Examining the reasoning of the judgment below in light of the relevant legal principles and records, the judgment of the court below is just and acceptable. Contrary to the allegations in the grounds of appeal, there are no errors of misconception of facts

2. Regarding ground of appeal No. 2

A. In relation to a joint tortfeasor, the joint tortfeasor is not liable to the creditor, but a certain portion of the joint tortfeasor's liability is determined according to the degree of negligence of the joint tortfeasor. If one of the joint tortfeasor has paid one or more of his/her own liability and has obtained joint immunity, he/she may exercise the right to reimbursement in proportion to the portion of liability to the other joint tortfeasor. Thus, in order for the joint tortfeasor to have the right to reimbursement of damages, the joint tortfeasor does not need to compensate for all damages of the victim, but he/she must compensate for the damages in excess of his/her own liability (see, e.g., Supreme Court en banc Decision 91Da33070, Jun. 23, 1992; Supreme Court Decision 2005Da28426, Feb. 9, 2006).

B. The court below held that, inasmuch as the Plaintiff, one of the joint tortfeasors, paid KRW 162 million to the wife G and H (hereinafter referred to as “bereaved family members”), the heir of the deceased who died of the instant accident, thereby discharging liability for damages, the Plaintiff may seek reimbursement against the Defendant for the part corresponding to the Defendant’s liability ratio, inasmuch as the Defendant, who is another joint tortfeasor, was also liable for damages. Furthermore, the court below held that the Plaintiff is liable for reimbursement of the amount corresponding to the Defendant’s liability ratio, taking into account the circumstances as stated in its reasoning that comprehensively admitted evidence was comprehensively admitted, it is reasonable to view the Plaintiff and the Defendant’s fault ratio in the instant accident as the Plaintiff and the Defendant were 65%, and Defendant 35%. As such, the Defendant recognized that the Plaintiff was liable for reimbursement of KRW 567 million (162 million x 35%) corresponding to

C. However, the lower court’s determination is difficult to accept for the following reasons.

In light of the above legal principles, where one of the joint tortfeasors of the accident of this case seeks to exercise the right to indemnity against the defendant, who is another joint tortfeasor, the plaintiff should have paid damages in excess of the part of the plaintiff's liability to the bereaved family member. In order to determine whether the damages paid by the plaintiff to the bereaved family member exceeds the part of the plaintiff's liability, the court below should have determined the amount of compensation jointly with the plaintiff in consideration of all the circumstances, such as the deceased's negligence ratio, etc. in the amount of damages caused by the death of the deceased. The court below should have determined the part of the plaintiff's liability and the defendant's liability according to the ratio of negligence of the plaintiff and the defendant. If the plaintiff's payment exceeds the part of the plaintiff's liability by comparing the amount of damages paid to the bereaved family member and the part of the plaintiff's liability to the defendant

Nevertheless, the court below held that when one of the joint tortfeasors has paid more than part of his share to obtain joint immunity, the other joint tortfeasor shall bear the part of his share in proportion to the portion of the joint tortfeasor's liability.

Under the premise of "may exercise the right to indemnity", without examining the damages of the deceased and their bereaved family members, who are the victims of the instant accident, and whether the plaintiff has paid damages in excess of their own share to the bereaved family members, the amount equivalent to the defendant's fault ratio out of the damages paid by the plaintiff to the bereaved family members is recognized as the amount of compensation to be borne by the defendant. Such judgment of the court below is erroneous in the misapprehension of legal principles as to the requirements for exercise of the right to indemnity by the joint tortfeasor and failing to exhaust all necessary deliberations, which affected

3. Conclusion

Therefore, the part of the lower judgment against the Defendant regarding the claim for reimbursement is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cho Jae-won

Justices Kim Chang-tae, Counsel for the defendant

Justices Park Sang-ok