[1] The portion of the joint tortfeasor's liability and the right of indemnity

[2] The requirements for one of the joint tortfeasor to exercise the right to indemnity against another joint tortfeasor

[3] Whether waiver of rights or exemption of obligations against one of the joint tortfeasors shall be effective against the other joint tortfeasors (negative)

[4] Time when the right to indemnity among the joint tortfeasor occurred (=time when the joint tortfeasor committed the act of exemption)

[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 against another joint tortfeasor, one of the joint tortfeasor shall assert and prove that he/she would have obtained joint immunity by paying more than the portion of his/her own share to the other joint tortfeasor. The above legal principle does not change on the ground that the victim's claim for indemnity against another joint tortfeasor is a case where he/she exercises the right to indemnity after the lapse of prescription.

[3] Even if the victim of the vicarious joint and several liability has renounced his/her right to claim damages against one of the vicarious joint and several liability obligors or expressed his/her intent to exempt him/her from his/her obligation, it cannot be deemed that the

[4] The time of occurrence of the right to indemnity between joint tortfeasors is when the right to indemnity has actually paid damages to the victim.

[1] Articles 425 and 760 of the Civil Act / [2] Articles 425 and 760 of the Civil Act / [3] Articles 419 and 760 of the Civil Act / [4] Articles 425 and 760 of the Civil Act

[1] [2] Supreme Court Decision 97Da8144 delivered on June 27, 1997 / [1] Supreme Court Decision 88Da27232 delivered on September 26, 1989 (Gong1989, 1559), Supreme Court Decision 92Da4871 delivered on January 26, 1993 (Gong1993Sang, 8499), Supreme Court Decision 93Da31078 delivered on October 12, 1995 (Gong195Ha, 3720 delivered on April 27, 1989) / [3] Supreme Court Decision 80Da25595 delivered on April 27, 198 (Gong1982, 521) 97Da39799 delivered on May 9, 198 (Gong979, Nov. 39, 197)

Dongyang Fire and Marine Insurance Co., Ltd. (Law Firm Han-dong Law Office, Attorneys Yu-hee et al., Counsel for the defendant-appellant)

Defendant 1 and one other

Seoul District Court Decision 96Na6348 delivered on October 30, 1996

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate brief submitted after the lapse of the period).

1. On the first, second, and fifth grounds

The joint tortfeasor shall be jointly and severally liable in relation to creditors, but there are certain parts of the joint tortfeasor's liability in relation to his/her 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 one or more of his/her own liability to obtain joint immunity, he/she may exercise the right to indemnity against the other joint tortfeasor according to the ratio of his/her liability (see, e.g., Supreme Court Decisions 88Da27232, Sept. 26, 1989; 92Da4871, Jan. 26, 1993; 93Da31078, Oct. 12, 1995). The above legal principle is not different in cases where one of the joint tortfeasor has paid one or more of his/her own liability to exercise the right to indemnity against another joint tortfeasor, and then he/she has to exercise the right to indemnity against another joint tortfeasor's other joint tortfeasor's liability (see, e.g., Supreme Court Decision 97Da19747.

According to the reasoning of the judgment below, the court below rejected the plaintiff's right of subrogation based on subrogation payment on the ground that there is no evidence to acknowledge that the amount subrogated by the plaintiff to the non-party 2 as the insurer of the non-party 1, one of the joint tortfeasors, exceeds the internal share to be borne by the non-party 1. In light of the records and the above legal principles, the court below's decision is acceptable, and there is no violation of the rules of evidence or misapprehension of the legal principles as to the requirements for the occurrence of the right of subrogation and the burden of proof

All of the grounds for appeal on this point cannot be accepted.

2. On the third and fourth grounds for appeal

Even if the injured party renounced the right to claim damages against one of the vicarious debtors jointly and severally liable or declared his/her intention to exempt the obligation, it cannot be deemed that the other debtor has its effect on the other debtor (see, e.g., Supreme Court Decisions 80Da2555, Apr. 27, 1982; 88∑169, May 9, 1989; 93Da6560, May 27, 1993). Furthermore, the time when the right to claim damages has occurred is actually paid to the injured party (see, e.g., Supreme Court Decision 93Da32958, Jan. 11, 1994).

According to the reasoning of the judgment below, the court below acknowledged the fact that the non-party 3 and non-party 4, who represented the non-party 2 after the accident in this case, received a total of KRW 18,035,200 from the plaintiff who subrogated the non-party 1 as a whole the compensation for damages including the medical expenses directly paid by the victim, and agreed not to raise any legal objection in the future between the plaintiff and the plaintiff. The court below determined that the victim's damages cannot be viewed as having confirmed the amount of the compensation and exempted the remainder of the compensation liability even between the non-party 5, who is the non-party 5 and the non-party 5, who is the other joint tortfeasor, and there is no evidence to find otherwise, and further, even if the damage claim against the defendants of the victim was extinguished after the agreement, the damage amount of the victim at the time of the plaintiff's withdrawal

In light of the records and the legal principles as seen earlier, the fact-finding and judgment of the court below are just, and there is no violation of the rules of evidence or misunderstanding of the legal principles as to the scope of damages. The precedents cited in the grounds of appeal (Supreme Court Decision 92Da20477 delivered on September 25, 1992) are different from the case and are inappropriate to be invoked in this case. The grounds of appeal as to this point are not acceptable.

3. Therefore, the appeal is dismissed, and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cho Chang-hun (Presiding Justice)