A. Where the percentage of fault of the joint tortfeasor differs from each other, the scope of liability for damages is different, the effect of partial repayment of the amount of damage made by one of the joint tortfeasor

B. Whether the legal principle of Paragraph A also applies to an employer’s liability for damages where an employee who committed a tort pays part of the amount to the victim to conceal this.

(c) Priority relationship under Article 158 of the Insurance Business Act and Article 756 of the Civil Act;

A. In a case where a joint tortfeasor is jointly and severally liable for damages to other persons, if the amount of damages is the same, the part equivalent to the full amount of the other tortfeasor’s liability due to absolute effect if the tortfeasor partly pays the amount of damages. However, in a case where the scope of damages to be paid to the victim varies depending on the degree of fault ratio of the tortfeasor’s damage, the scope of the extinguished obligation differs depending on who actually paid the tort. In other words, in a case where a person liable for a small amount of damages pays part of the amount of damages after the establishment of tort, the part equivalent to the full amount of the liability of the person liable for a large amount of damages is extinguished, as well as the obligation of the person liable for a small amount of damages, if the person liable for a large amount of damages partly pays the amount of damages, the obligation of the person liable for a small amount of damages shall not be extinguished, but shall be deemed extinguished in proportion to the portion corresponding to the ratio of negligence on which only the

B. The objection under Paragraph (a) is identical in cases where an employee has partially repaid his/her liability for damages. This legal doctrine is likewise applicable to cases where the employee himself/herself paid part of the amount to the victim after the establishment of a tort, not explicitly made partial payment of damages, but made a concealment of the tort, or made payment as a means of deception. It is effective to extinguish his/her liability only for the portion corresponding to the employer’s percentage of fault.

(c)where an employee of an insurer has inflicted damage on the policyholder in the course of soliciting an insurance, Article 158 of the Insurance Business Act, which provides for liability of the insurer to which the employee belongs, shall be applied in preference to Article 756 of the Civil Code, which is the general provision on liability of the employer

Article 413(Articles 393 and 396) of the Civil Act. Articles 763 and 756(c) of the Insurance Business Act

A.B. Supreme Court Decision 93Da53696 delivered on February 22, 1994 (Gong1994Sang, 1078) 94Da10931 delivered on August 9, 1994 (Gong1994Ha, 2275) 94Da5731 delivered on March 10, 1995 (Gong195Sang, 1571 delivered on November 22, 1994)

Plaintiff 1 et al., Counsel for the plaintiff-appellee

Korea Fire & Marine Insurance Corporation, Counsel for the plaintiff-appellant-appellee

Gwangju High Court Decision 93Na2512 delivered on March 11, 1994

The part of the judgment below against each of the plaintiffs as to the conjunctive claim is reversed, and that part of the case is remanded to the Gwangju High Court.

The plaintiffs' grounds of appeal are examined.

1. According to the reasoning of the judgment below, the court below determined that, in calculating the amount of damages to be compensated for the plaintiffs, the non-party is liable for damages suffered by the plaintiffs due to the non-party's tort as an employer of the above non-party, and it is reasonable to 30% of the above damages, the plaintiffs' negligence is set at 30% of the premium acquired by the plaintiffs in calculating the amount of damages to be compensated for the plaintiffs, and then the amount received as interest on the insurance premium is deducted from several times from the above non-party, and the defendant deducted full amount of the amount received by the plaintiffs under the pretext of interest on the insurance premium from the above non-party to the above non-party, and the defendant is liable for compensation for damages to the plaintiffs.

2. As to the first ground for appeal:

The court below also held that the plaintiffs are negligent in the occurrence of the above damages and that the ratio of negligence is 30%. In light of the records, the evaluation by the court below is not deemed considerably unreasonable, and there is no error of law in the misapprehension of legal principles as to comparative negligence, as alleged in the grounds of appeal.

3. As to ground of appeal No. 2

In cases where a joint tortfeasor is jointly and severally liable for damages to other persons, if the amount of damages is the same, the liability of the other tortfeasor would be extinguished due to absolute effect if the liability of the tortfeasor is partially paid out of the amount of damages. However, in cases where the scope of damages to be paid to the victim varies depending on the degree of damages to be paid by the tortfeasor, the scope of liability to be extinguished depending on who actually paid the tort would vary. In other words, in cases where a person liable for a small amount of damages partly paid out of the amount of damages after the establishment of tort, the obligation of the person liable for a large amount of damages would not be extinguished, or in cases where a person liable for a large amount of damages partly paid out of the amount of damages, the obligation of the person liable for a small amount of damages would be limited to the portion corresponding to the ratio of liability of the employer to be paid to the employee (see Supreme Court Decision 90Da53696, Feb. 22, 194; Supreme Court Decision 93Da5396, Feb. 29, 1999).

According to the records, since the amount paid by the above non-party to the plaintiffs as interest on the insurance premium was considered to have been paid to conceal his tort, in calculating the scope of compensation for damages by the defendant company under the employer's compensation liability, the plaintiffs set off negligence from the amount equivalent to the insurance premium acquired by the plaintiffs, and again, the part corresponding to this amount shall be calculated by calculating the amount corresponding to the defendant's fault ratio, which is the employer, among the amount paid by the above non-party to the plaintiffs as interest on the insurance premium, and only the amount corresponding to this amount shall be deemed to have the effect of extinguishment of liability in accordance with the legal principles of appropriation of performance. However, the court below, which deducted

4. As to the third ground for appeal:

Article 158 of the Insurance Business Act, which provides for an employee's liability for damages to a policyholder in the course of soliciting insurance contracts, shall take precedence over Article 756 of the Civil Act, which is a general provision on the employer's liability for damages. Thus, the court below's erroneous determination that Article 158 of the Insurance Business Act and Article 758 of the Civil Act are based on the defendant company's liability for damages. However, as long as the court below recognizes the defendant company's liability for damages as stated in its reasoning, the court below's above reasoning cannot be deemed an unlawful determination

Meanwhile, even if an insurer is liable for damages pursuant to Article 158 of the Insurance Business Act, if there is negligence on the part of the policyholder, the court shall take into account the liability for damages and the amount thereof. Therefore, in calculating the scope of liability for damages of the defendant company, the court below's measures taken into account the plaintiff's negligence as stated in its reasoning are considered correct. In addition, there is no error of law in the misapprehension of legal principles as to Article 158 of the Insurance Business Act, contrary

5. Accordingly, each part of the judgment below against the plaintiffs as to the conjunctive claim is reversed, and that part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition with the assent of all Justices who reviewed the case.

Justices Park Jong-ho (Presiding Justice)