[1] Conditions under the premise for applying Article 760(2) of the Civil Code

[2] The case holding that the court below erred in the misapprehension of legal principles as to Article 760 (2) of the Civil Code, in case where the second accident occurred in which the vehicle driven by Gap was driven by Eul and the first accident occurred in which the vehicle driven by Byung was driven by Byung, and the second accident occurred in which the vehicle driven by Byung was driven by Byung, and as a result, Gap died as a result of the second accident; first, the court below should have determined whether the first and second accident occurred in relation to the first accident constitutes a joint tort by the identity of the perpetrator who is unknown under Article 760 (2) of the Civil Code, or even after the first accident, and determined whether the second accident constitutes a joint tort by the driver of the second accident, since the first and second accident occurred in relation to the first accident, or even after the first accident, Gap's existence can be recognized as tort liability for the second accident.

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

Plaintiff 1 and two others (Attorney Lee Jae-soo, Counsel for the plaintiff-appellant)

National Pension Service

Samsung Fire and Marine Insurance Co., Ltd. (Bae & Yang LLC, Attorneys White-chul et al., Counsel for the plaintiff-appellant)

Busan District Court Decision 201Na1139 Decided September 28, 2011

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

The grounds of appeal are examined.

1. Article 760(1) of the Civil Act provides that “When several persons inflict damages on another person by a joint tort, they shall be jointly and severally liable for such damages.” Article 760(2) provides that “If it is impossible to find out which person’s act among several non-joint acts has inflicted damages, it shall also be the same as the preceding paragraph.” Although there are several acts that can be viewed as the cause of damages, the joint tort under paragraph (1) is not constituted due to the lack of objective relevance among them, on the other hand, where it is unclear whether certain acts have caused damages, the causal relationship between each act and the damages is presumed legally in the policy consideration to protect the victim by lowering the burden of proof of the victim as to causation. Therefore, in applying Article 760(2) of the Civil Act, it should be assumed that a multiple third party’s act is likely to have caused damages that the victim suffered in advance.

2. citing the reasoning of the first instance judgment, the lower court determined that: (a) Nonparty 1 driven a dump truck as indicated in the judgment around 00:20 on March 26, 2009; (b) obstructed the lower part of Nonparty 2’s back side of the dump truck as indicated in the judgment of Nonparty 2’s driving in the front of the dump truck in the same direction while driving the dump truck from the front side of the dump truck to the south-west side of the dump truck; (c) the first accident was caused by which the front part of the vehicle was stopped in the direction of 11 cc away from the lower part of the dump truck; and (d) it is difficult for Nonparty 3, who was negligent in driving the dump truck as indicated in the judgment of the first instance on March 26, 2009 and caused the death of Nonparty 1’s front part of the vehicle due to the death of Nonparty 2, which caused the death.

3. However, in order to apply Article 760(2) of the Civil Act as seen earlier, it should be premised on the existence of multiple third parties’ act that is likely to have caused damage to the victim. Therefore, in order to apply Article 760(2) of the Civil Act to the instant 1 and 2 accidents, first of all, it should be acknowledged that the instant 1 and 2 accidents were committed by a third party other than the victim, and further, it should be deemed that the victim’s death was caused by the instant 1 and 2 accidents.

On the other hand, although the first accident of this case was caused by the victim's unilateral negligence, if the victim remains alive even thereafter, the death can be seen as caused by the second accident of this case. Thus, the defendant's liability for damages can be recognized. Even if the second accident of this case was processed by the non-party 2, who is a dump truck driver, in the process of the second accident, the non-party 2's fault such as violation of the duty to take safety measures after the accident of this case, only the establishment of the joint tort under Article 760 (1) of the Civil Act is a matter, and there is no room to apply

Ultimately, in order to impose liability on the Defendant under Article 760(2) of the Civil Act, it should be proven that there was another third party’s act that could cause damage due to the death of the victim with respect to the first accident of this case. Thus, the court below should have determined whether the first and second accidents of this case constitute a joint tort by the identity of the perpetrator under Article 760(2) of the Civil Act, or whether the second accident of this case constitutes a joint tort by the identity of the victim even after the first accident of this case.

Nevertheless, the court below held that the first and second accidents of this case constitute a joint tort by which the perpetrator is unknown under Article 760(2) of the Civil Act solely for the above reasons. The court below erred by misapprehending the legal principles on Article 760(2) of the Civil Act or failing to state the reasons therefor, and affected the judgment. The ground of appeal assigning this error has merit.

4. Therefore, without examining the remaining grounds of appeal, 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 Ahn Dai-hee (Presiding Justice)