The legal nature of the victim's direct right under Article 724 (2) of the Commercial Act (=the claim for damages) and the insurance terms and conditions of liability insurance provide that the insurer shall deduct the amount of the insurer's own right from the insurance amount payable by the insurer to the victim, the extent of the

Article 724(2) of the Commercial Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jae-soo et al., Counsel for plaintiff-appellant)

Samsung Fire and Marine Insurance Co., Ltd. (Law Firm Hong-ho et al., Counsel for the plaintiff-appellant)

Hansung Damage Insurance Co., Ltd. (Law Firm Democratic, Attorneys Lee Dong-tae et al., Counsel for the defendant-appellant)

Seoul Central District Court Decision 2013Na4035 Decided August 22, 2013

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.

1. As to the grounds of appeal on deduction of self-charges

A. The legal nature of the victim’s direct right to claim under Article 724(2) of the Commercial Act is that the insurer concurrently takes over the insured’s obligation to compensate for damages against the victim, and the victim is the right to claim damages against the insurer, and the insured’s right to claim damages against the insurer, not the right to change or change its insurance claim against the insurer (see Supreme Court Decision 94Da6819, May 27, 1994, etc.)

However, the insurer’s obligation to compensate for damages based on such direct claim of the victim is premised on an insurance contract, and is recognized within the insurer’s limit of liability under the insurance contract. Thus, if the insurance clause provides for the insurer to deduct the self-paid amount from the insurance amount payable by the insurer, the insurer bears the obligation to pay the victim directly for the amount obtained by deducting

B. Review of the reasoning of the lower judgment and the record reveals the following facts.

1) On August 28, 2009, Co-Defendant 2 entered into a comprehensive insurance contract with the Defendant for non-distribution business (hereinafter “instant insurance contract”). The instant insurance contract includes a special clause on the liability of the owner of the facility (management) who has injured another person’s body due to an unexpected accident arising from the performance of duties according to the use of the instant building and the instant building, or who has caused damage to another person’s property due to the loss of another person’s property being liable for legal liability. The maximum amount of compensation is KRW 30 million per person, and KRW 30 million per accident.

2) Article 2(1) of the Special Clause on Liability for Damages of the Owner of Facility (Management) according to the instant insurance contract provides the scope of damages to be compensated by the Defendant, such as the amount of damages paid by the insured to the victim (No. 1) and the expenses or beneficial expenses (No. 2) incurred by the insured to prevent damage. Article 2(2) provides that “The limit of the company’s liability for damages under paragraph (1) exceeds the amount of its own contributions as stated in the insurance policy (the insurance policy) for each incident, but is as follows:

3) The phrase “other matters covered by the insurance policy of this case” refers to “other matters covered by the insurance policy of this case: Facility owner’s liability and maximum amount of compensation: Limit of subscription amount (100,000 won per one accident).”

4) On July 3, 201, around 16:50, each of the vehicles owned by Nonparty 1, 2, 3, 4, 5, 6, 7, 8, and 9 (hereinafter “victims”) was destroyed by fire that occurred inside the pumps of the first floor parking lot of the instant building.

5) On July 22, 2011, the Plaintiff concluded an automobile insurance contract with the said victims: (a) paid the total of KRW 8.32 million to Nonparty 1; (b) KRW 1,279,000 to Nonparty 2 on July 21, 2011; (c) KRW 1,558,110 to Nonparty 3 on July 15, 2011; (d) KRW 5,216,050 to Nonparty 4 on July 21, 2011; and (e) KRW 2.59 million to Nonparty 5 on July 20, 201; and (e) KRW 7.37 million to Nonparty 6 on July 13, 201; and (e) KRW 2,370,000 to Nonparty 2 on July 12, 201; and (e) KRW 300,3708,280,718,78,201.

C. Examining these facts in light of the legal principles as seen earlier, the Defendant, the insurer of the instant insurance contract, is obligated to pay directly to the Plaintiff, who exercises the victim’s right to direct claim under Article 724(2) of the Commercial Act, for the amount calculated by deducting KRW 100,000 of the self-paid amount

Nevertheless, the court below rejected the defendant's assertion that 100,000 won should be deducted for the reasons stated in its reasoning. In this case, the court below erred by misapprehending the legal principles as to the scope of the victim's direct right and the terms and conditions of the mutual aid agreement for the self-payment, which are recognized under Article 724 (2) of the Commercial Act, which affected the conclusion of

Meanwhile, Supreme Court Decision 94Da6819 Decided May 27, 1994 cited by the court below is inappropriate to be invoked in the instant case, since it differs from the instant case concerning the deduction of self-charges.

2. As to the ground of appeal on which no parking lot is included in the object of compensation

For the reasons indicated in its reasoning, the lower court determined that the accident occurred in the parking lot on the first floor of the instant building, which is the facility indicated in the insurance policy of this case, is included in the subject of compensation under the special terms and conditions for compensation of the facility owner.

In light of the relevant legal principles and records, the above determination by the court below is just, and contrary to the allegations in the grounds of appeal, there were no errors by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending

3. As to the grounds of appeal on the exemption clause

The court below rejected the defendant's defense of exemption from liability on the ground that it cannot be deemed that the damage vehicle parked by the user of the building of this case is possessed by the co-defendant, Co-Defendant, Co-Defendant, Ltd., Ltd. (hereinafter referred to as the "Rosp") of the court of first instance by citing the judgment of the court of first instance, and that it is difficult to view that the Sspond was protecting, managing,

In light of the relevant legal principles and records, the above determination by the court below is just, and contrary to what is alleged in the grounds of appeal, there were no errors by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, by misapprehending the legal principles on possession

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 Min Il-young (Presiding Justice)