[1] Calculation method of the portion of the joint tortfeasor's liability and the requirements for exercising the right of indemnity

[2] The scope of exercise of the right to indemnity among joint tortfeasors

[1] The joint tortfeasor shall be held jointly and severally liable in relation 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. When one of the joint tortfeasor has paid more than the portion of the joint tortfeasor's liability to obtain joint exemption, he/she may exercise the right to indemnity in proportion to the portion of the joint tortfeasor's liability.

[2] In order to exercise the right to indemnity under the joint tort liability among the joint tortfeasors, the ratio of the portion to be borne by the other party to the claim of indemnity among the whole joint tortfeasors is set. Therefore, the relative share ratio between the parties to the claim of indemnity shall not be set simply. In addition, in cases where multiple victims are involved and there are different parts of each joint tortfeasor or each joint tortfeasor, the relationship of indemnity

[1] Articles 425(1) and 760(1) of the Civil Act / [2] Articles 425(1) and 760(1) of the Civil Act

[1] Supreme Court Decision 90Da20244 decided Oct. 22, 1991 (Gong1991, 2798), Supreme Court Decision 96Da50896 decided Dec. 12, 1997 (Gong1998Sang, 254), Supreme Court Decision 98Da52469 decided Feb. 26, 199 (Gong1999Sang, 615), Supreme Court Decision 200Da29028 decided Aug. 22, 2000 (Gong2000Ha, 2014), Supreme Court Decision 307Da36075 decided Oct. 36, 2005)

National Federation of Bus Transport Business Cooperatives (Attorney Lee In-bok, Counsel for the plaintiff-appellant)

Korea Fire Marine Insurance Co., Ltd. (Attorney Lee Jae-hoon, Counsel for defendant-appellee)

Changwon District Court Decision 200Na1178, 2000Kag1915 delivered on November 2, 2000

The judgment of the court below is reversed, and the case is remanded to the Changwon District Court Panel Division.

We examine the grounds of appeal.

1. Regarding mistake of facts

On February 6, 1995, the court below found that Nonparty 1 driven the above vehicle (number 1 omitted) owned by Nonparty 2 on February 6, 1995, the non-party 1 and the non-party 2 (hereinafter referred to as the "the non-party 1 vehicle of this case") on the non-party 3 driver's license plate number 382.9 km away from the front side of the Highway in the city of Msan, the non-party 3 driver's (vehicle number 2 omitted), the non-party 4 driver's license number 2 omitted, the non-party 4 driver's license 2 omitted, the non-party 5 driver's license number 2 omitted, and the non-party 1 driver's license 5 driver's license 2 omitted on the front side of the above vehicle of this case (hereinafter referred to as the "the non-party 2 vehicle of this case"), the non-party 6 driver's license 5 driver's license 2 omitted.

Examining relevant evidence in light of the records, the above recognition by the court below is just and acceptable, and there is no error of law such as misconception of facts or incomplete deliberation due to a violation of the rules of evidence. This part of the grounds for appeal cannot be accepted.

2. As to the scope of exercise of the right of indemnity

A. The judgment of the court below

Based on the fact-finding, the court below held that the traffic accident in this case occurred by the above non-party 1 and the non-party 5, the driver of the vehicle in this case, and the non-party 1, who is the driver of the vehicle in this case, maintained the truck and the safety distance in front at the time, while driving the two lanes at the time, while securing a sufficient safety distance after the movement of the vehicle in front at the time, and neglected the duty of care to safely change the lanes. Since the above non-party 5, the driver of the vehicle in this case, who is the above non-party 2 vehicle in this case, had a duty of care to secure and operate the safety distance with the vehicle in front, it is reasonable to view that the above non-party 1 and the non-party 5's negligence ratio of the above non-party 6:4, in light of the degree of negligence, the scope of the plaintiff's indemnity against the defendant, the insurer of the vehicle in this case for the two vehicles in this case, as well as the amount equivalent to the defendant's joint immunity and exemption rate after the date.

B. Judgment of the Supreme Court

We cannot agree with the above judgment of the court below as to the scope of exercise of the right of indemnity.

The joint tortfeasor shall be jointly and severally liable in relation to creditors, but there are certain portions of the joint tortfeasor's internal relationship. The portion of the joint tortfeasor's liability is determined according to the degree of negligence of the joint tortfeasor. When one of the joint tortfeasor has paid more than one of his/her own share to obtain joint immunity, the other joint tortfeasor may exercise his/her right to indemnity in proportion to the portion of the joint tortfeasor's liability (see, e.g., Supreme Court Decisions 98Da52469, Feb. 26, 1999; 200Da29028, Aug. 22, 2000; 200Da33607, Jan. 19, 201). In order to exercise the right to indemnity, the portion of the joint tortfeasor's liability that the other party to the joint tortfeasor bears among the whole joint tortfeasor is not simply a relative share between the parties to the claim, and in cases where the other part of the joint tortfeasor's joint tortfeasor or the joint tortfeasor's liability is different.

If so, the court below determined each traffic accident according to the type of each of the accidents in this case by the victim (the victim, non-party 4, non-party 7, non-party 10, non-party 9, non-party 8, and non-party 11, etc. who is the passenger of the two vehicles in this case, can be divided into the victim, non-party 7, non-party 10, non-party 9, non-party 8, and the non-party 1, etc. who is the passenger of the two vehicles in this case). The court below determined the ratio of the part to be borne by the other party of the compensation among the persons who are liable for damages by each victim, and determined the scope of the compensation. The court below erred in the misapprehension of legal principles as to the scope of the right to indemnity, which affected the conclusion of the judgment of the court below, by setting only the relative ratio between the parties to the compensation in this case and applying a single ratio to the whole amount of joint exemption.

3. Therefore, the lower judgment is reversed, and 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 Seo-sung (Presiding Justice)