[1] Meaning of “expenses for prevention of damage” under Article 680(1) of the Commercial Act, and in a case where an insurer who entered into an insurance contract with one of the joint tortfeasor has fully repaid expenses for prevention of damage to the insured, whether such insurer may exercise the right of direct reimbursement against the part to be borne by the insurer of another joint tortfeasor (affirmative)

[2] In the event that an agreement or a settlement is reached between the parties in connection with compensation for losses caused by a tort, the principle of interpretation of the matters aimed at the agreement

[3] The case holding that even if one of the joint tortfeasors receives payment of KRW 20 million from the insurer of the other joint tortfeasor's liability insurance and agreed to waive the "legal amount of compensation" against the insurer, it shall not be deemed to have waived the right to demand reimbursement of the expenses not related to the above limit

[1] Expenses for prevention of loss under Article 680(1) of the Commercial Act refers to expenses incurred or beneficial to an act performed in order to prevent damage or to mitigate damage as well as to prevent the expansion of damage in the event the insured event occurred, which is secured by the insurer. However, in the event that one of the joint tortfeasor has paid expenses to prevent and mitigate damage due to joint tort, the expenses incurred by the policyholder or the insured shall, in principle, be claimed to the insurer himself/herself. However, if one of the joint tortfeasor has paid expenses to prevent and reduce damage, the above expenses for prevention of damage falls under the expenses for prevention of damage to the insurer of the other joint tortfeasor as well as the insurer of the other joint tortfeasor, the insurer who has concluded an insurance contract with the respective joint tortfeasor bears not only in relation to the insured or the policyholder, but also in relation to the other joint tortfeasor who has no relationship with the insurer, the insurer shall be held liable to reimburse the expenses for prevention of damage. In addition, if one of the joint tortfeasor and the insurer who concluded the insurance contract with the insurer has repaid the expenses for prevention of damage to the other joint tortfeasor.

[2] In a case where the parties concerned agree or agree to receive a certain amount of amount and waive the remainder of the claim, in principle, it shall not be claimed later. Thus, it shall be strictly interpreted by comprehensively taking into account various circumstances at the time of agreement or compromise.

[3] The case holding that even if one of the joint tortfeasors receives 20 million won from the insurer of the other joint tortfeasor's liability insurance and agreed to waive the "legal amount of compensation" against the insurer, it shall not be deemed to have waived the claim for reimbursement of the damage prevention expenses unrelated to the above limit

[1] Article 680(1) of the Commercial Act, Articles 425 and 760 of the Civil Act / [2] Articles 105, 733, and 750 of the Civil Act / [3] Article 680(1) of the Commercial Act, Articles 105, 733, 750, and 760 of the Civil Act

[1] Supreme Court Decision 94Da27076 delivered on December 8, 1995 (Gong1996Sang, 325) Supreme Court Decision 2002Da22106 Delivered on June 28, 2002 (Gong2002Ha, 1810) Supreme Court Decision 2003Da6958 Delivered on June 27, 2003 (Gong2003Ha, 1616) / [2] Supreme Court Decision 2003Da19206 Delivered on October 10, 203

National Freight Trucking Federation (Attorney Choi Sung-sung et al., Counsel for defendant-appellant)

Samsung Fire & Marine Insurance Co., Ltd. (Law Firm Jeong-man et al., Counsel for the plaintiff-appellant)

Busan High Court Decision 2004Na4256 delivered on October 21, 2004

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

The grounds of appeal are examined.

1. Expenses for the prevention of loss and the contributor under Article 680 (1) of the Commercial Act;

Article 680(1) of the Commercial Act provides, “The policyholder and the insured shall endeavor to prevent and reduce damages. However, even if necessary or beneficial expenses and amount of compensation exceed the insured amount, the insurer shall bear them.” The expenses for prevention of damages as referred to in this provision are expenses necessary or beneficial to prevent the occurrence of damages or the expansion of damages in the event of an insured incident secured by the insurer, and are expenses incurred in or beneficial to the act conducted with the aim of reducing the damages (see Supreme Court Decisions 2002Da22106, Jun. 28, 2002; 2003Da6958, Jun. 27, 2003, etc.). In principle, if the policyholder or the insured were to bear the expenses disbursed by the insurer to prevent and reduce damages, the expenses incurred by one of the joint tortfeasor to prevent damages as well as the expenses incurred by the insurer to prevent and reduce the damages, and thus, the insurer and the insurer who concluded the joint tortfeasor are also liable to prevent damages as well as the expenses incurred by the insurer.

According to the facts duly established by the court below, the non-party 1 corporation, one of the joint tortfeasors (hereinafter "non-party 1 corporation"), in the situation where a large quantity of oil leaked due to the accident in this case flows into nearby reservoirs and rivers and delay in pollution response operations may spread and cause damage to a third party. In order to reduce pollution and prevent damage to the third party, the court below appointed a lawyer in the lawsuit brought between the pest controller and the pest controller, and paid expenses for pollution response work and the appointment of a lawyer. The above expenses constitute the expense for prevention of damage under Article 680 of the Commercial Act, as well as the plaintiff who is the insurer of the non-party 1 corporation, and also the defendant who is the insurer of the other joint tortfeasor, is also the insurer of the non-party 2. The plaintiff who repaid the expense for prevention of damage to the non-party 1 corporation can exercise a direct right to indemnity against the part that the insurer of the other joint

In the same purport, the court below is justified in concluding that the plaintiff can claim reimbursement of the damages prevention expenses to be borne by the defendant, who is the insurer of another joint tortfeasor, and there is no error in the misapprehension of legal principles as to the costs for the prevention of damages and the obligor under Article 680 (1) of the Commercial Act. The supplementary appellate brief, the supplementary appellate brief submitted after the expiration of the period for submitting the grounds of appeal and the supplementary appellate brief, are not acceptable.

2. Whether or not to waive the right to demand reimbursement of expenses for prevention of damage;

In a case where the parties concerned agree to receive a certain amount of money and give up the remainder of claims in connection with compensation for damages caused by a tort, it is a principle that the parties can not claim compensation later. Thus, the strict interpretation shall be made by comprehensively taking into account various circumstances at the time of agreement or settlement (see Supreme Court Decision 2003Da19206, Oct. 10, 2003).

In light of the circumstances stated in its holding, the court below held that the agreement in which the non-party 1 company received KRW 20 million from the defendant, who is the insurer of another joint tortfeasor, to waive the "legal amount of compensation" against the defendant, which is the limit of the liability for damages caused by automobile accident insurance, shall not be deemed to have waived the right to demand reimbursement of the damage prevention expenses unrelated to the above limit. There is no violation of law by misunderstanding the legal principles as to the validity of the agreement or by misunderstanding facts against the rules of evidence. The supplementary appellate brief filed after the expiration of the deadline for submitting the grounds of appeal and the supplementary appellate brief, all of the supplementary reasons for appeal shall not be accepted.

3. 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 Young-ran (Presiding Justice)