[1] Whether subrogation is recognized where an insurer pays insurance money to the insured even though the insurer did not have an obligation to pay the insurance money because it falls under losses not secured by an insurance contract (negative)

[2] The case holding that in a case where the contract terms and conditions for the contract for the contract of the contract of the contract of the contract of the contract of the contract of the contract of the contract of the contract of the contract of the contract of the contract of the contract of the contract of the contract of the contract of the contract of the contract of the contract of the contract of the contract of the contract of the contract of the contract of the contract of the contract of the contract of the contract of the contract of the contract of the contract of the contract of the contract of the contract of the contract of the contract of the contract of the contract of the contract of the contract of the contract of the contract of the contract of the contract of the contract of the contract of the insured, the contract of the contract of the contract of the contract of the contract of the contract of the contract of the contract of the contract of the contract of the contract of the contract of the contract of the contract of the contract of the contract of the contract of the contract of the contract was

[3] In a case where a claim does not first determine the main claim, but only accepted the main claim, rejected only the main claim, and did not judge the main claim, whether the judgment is legally permissible (negative), and where the main claim is not determined at the time of rejection of the main claim, whether the main claim, which was omitted in the judgment, is transferred to the appellate court (affirmative)

[1] Article 682(1) of the Commercial Act / [2] Article 682(1) of the Commercial Act, Article 745 of the Civil Act / [3] Articles 212(1), 253, 392, 425, and 431 of the Civil Procedure Act

[1] Supreme Court Decision 2012Da88716 Decided October 15, 2014 (Gong2014Ha, 2172) / [3] Supreme Court en banc Decision 98Da22253 Decided November 16, 200 (Gong2001Sang, 34)

Case non-life insurance Co., Ltd. (Law Firm Cheongju, Attorneys Don-dong, Counsel for defendant-appellant)

Defendant 1 and one other (Attorney Jeong-chul et al., Counsel for the defendant-appellant)

Seoul Central District Court Decision 2016Na28575 Decided February 3, 2017

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

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the grounds of appeal on the scope of exemption provisions under the insurance terms and conditions

In order to recognize subrogation by an insurer against a third party as stipulated in Article 682(1) of the Commercial Act, an insurer is liable for paying insurance proceeds to the insured, and in cases where an insurer pays insurance proceeds to the insured even though the insurer did not have an obligation to pay insurance proceeds because it falls under losses not secured in an insurance contract, the insurer cannot exercise the right to claim compensation for damages of the insured in accordance with the subrogation doctrine (see Supreme Court Decision 2012Da88716, Oct. 15, 2014, etc.).

Examining the reasoning of the judgment of the court below and the court of first instance cited by the court below, in light of the above legal principles and records, the court below concluded a contract with a specialized construction mutual aid association and the representative insured industrial development corporation (hereinafter “clear industrial development”), which provides that “this case’s insurance contract” (hereinafter “this case’s insurance contract”) shall be deemed to be a contract contractor’s compensation liability insurance for damages arising from the work performed by the contractor (including subcontractor, etc.) as one of the damages not compensated by the insurer under Article 13(13)(a) of the ordinary terms and conditions of the insurance contract of this case; (3) The industrial development ordered the insurer of this case’s indemnity insurance contract of this case to be concluded with a specialized construction mutual aid association and the representative insured; (4) the accident of this case constitutes an insurance contract of this case’s removal of the automobile with the contractor’s indemnity insurance contract of this case; and (5) the Plaintiff’s subrogation insurance contract of this case’s insurance contract of this case was not established for the reason that the damages occurred between the Plaintiff and the victim’s employees.

2. As to the ground of appeal on the acquisition of the right to indemnity under Article 745 of the Civil Act

The court below held that Article 745(1) and (2) of the Civil Act provides that the payment of insurance money to the victims of the instant accident shall be made only when the Plaintiff paid the money to the victims of the instant accident, and that the Plaintiff could not acquire the right to indemnity under Article 745 of the Civil Act against the Defendants on the ground that the payment of insurance money to the victims of the instant accident was merely a performance of the Plaintiff’s insurance contract, and that the payment was not made with the knowledge that the Defendants paid other persons’ obligations, i.e., the damages owed to the victims, was not made with the erroneous knowledge that they were paid the victims

However, as seen above, the Plaintiff did not have the obligation to pay the insurance money under the insurance contract of this case. Meanwhile, even if a person other than the obligor pays an obligation due to mistake, if the obligee destroys a certificate in good faith, renounces a security, or loses his claim by prescription, the obligee may not demand the return thereof, and instead exercise the right to demand the reimbursement against the obligor (Article 745(1) and (2) of the Civil Act). According to the records, the Plaintiff knew that there was an obligation to pay the insurance money to the victims under the insurance contract of this case even though the Plaintiff did not have the obligation to pay the insurance money to the victims, and the victims paid the insurance money to the victims, and the victims did not bring a separate lawsuit against the Defendants. Accordingly, there is a possibility that the damages claim equivalent to the insurance money to the Defendants of the victims may be extinguished by prescription. Accordingly, it is sufficient that the Plaintiff as the obligor may exercise the right to demand reimbursement against the Defendants in good faith.

Therefore, the lower court erred by misapprehending the legal doctrine on the acquisition of the right to indemnity under Article 745 of the Civil Act by failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment.

3. Ex officio determination

A. The preliminary consolidation of claims is a combination of claims seeking adjudication on the conjunctive claims (the second claims) as a condition subsequent to the occurrence of the main claims (the second claims) among several claims joined. In the case of such preliminary consolidations, several claims are indivisible into one litigation procedure. As such, a part of the judgment, such as accepting only the conjunctive claims or rejecting only the main claims, and not judging the conjunctive claims, is legally prohibited as contrary to the characteristics of the preliminary consolidation. However, in the case of a judgment that did not determine the conjunctive claims while rejecting the main claims, if an appeal against the judgment was filed, the part of the conjunctive claims omitted is the appellate trial, and that part of the conjunctive claims which were omitted is the omission of the trial, and that it is the omission of the trial and that it is continuing to the court below (see Supreme Court en banc Decision 98Da2253 delivered on November 16, 2000).

B. According to the records, the plaintiff asserted that he paid the insurance money to the victims of the accident of this case, and filed a claim based on the insurer subrogation right under Article 682 (1) of the Commercial Act against the defendants, but the first instance court rendered a judgment dismissing the plaintiff's claim on the grounds that the above insurer subrogation right cannot be exercised. Accordingly, even if the court below did not have the plaintiff's liability to pay the insurance money, it can be seen that the defendants asserted that they should bear the liability to pay the insurance money to the plaintiff under Article 745 of the Civil Act, and added the plaintiff's claim for seeking the indemnity under Article 745 of the Civil Act to the defendants. Thus, the above claim for subrogation on the grounds that the plaintiff did not have the obligation to pay the insurance money to the victims of the accident of this case on the premise that the plaintiff had the obligation to pay the insurance money, is a separate claim that cannot be compatible with each other

Therefore, in a case where the court below rejected both the above main claim and the conjunctive claim, it should have rendered a decision to dismiss the additional conjunctive claim, not just the order to dismiss the plaintiff's appeal.

C. Nevertheless, the court below rendered an order to dismiss the plaintiff's appeal only. The court below erred by misapprehending the legal principles on the preliminary consolidation of claims, which affected the conclusion of the judgment.

4. Conclusion

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Shin (Presiding Justice)