2015Da256589 Claims

Dong Fire Insurance Co., Ltd.

New World Co., Ltd

Seoul Central District Court Decision 2015Na30946 Decided December 1, 2015

May 27, 2016

The part of the judgment below against the defendant is reversed, and the case is remanded to the Seoul Central District Court.

The grounds of appeal are examined.

1. Between multiple parties liable under the quasi-joint and several liability relationship, there may be certain burdens according to the principle of equity, and the portion to be borne is determined according to the degree of each party’s intent and negligence. Therefore, when one of the quasi-joint and several liability parties jointly and severally liable has obtained joint immunity by repaying not less than the portion to be borne by him/her, he/she may exercise the right to reimbursement in proportion to the portion to be borne by the other quasi-joint and several liability parties (see, e.g., Supreme Court Decision 2005Da1937

2. A. According to the lower judgment and the record, the following facts are recognized:

1) The Defendant, as the owner of a new global department store, contracted the repair business of the elevator to the tescluf elevator company (hereinafter “Escluf company”), and the tescluf company entered into an entrustment contract for the repair inspection of the elevator on March 1, 2007, and the tescluf company took charge of the elevator repair inspection.

2) On March 17, 2007, A was on board the instant elevator in order to install signboards at a department store, which was in progress of the opening preparation work. From the first floor to the second floor, the instant elevator was on the wind, which started from the underground floor and fell into the second floor to the underground floor, causing bodily injury, such as protruding, Nos. 6, 7, 4, 5, and 5, etc. (hereinafter referred to as the “accident”). (3) The Plaintiff entered into an insurance contract with Lebeter, which guarantees liability for damages arising during the course of performing the contracted work, according to the insurance contract, the Plaintiff paid the insurance proceeds of KRW 31,15,057 in total to A by July 14, 2008.

4) The Korea Workers' Compensation and Welfare Service paid disability benefits and temporary disability compensation benefits to A, and filed a lawsuit against Lebeter, Defendant, and Plaintiff for a claim for reimbursement against the Plaintiff. The first instance court declared that “The Defendant, the Plaintiff, and the Korea Workers' Compensation and Welfare Service shall pay KRW 50,730,038, and any delay damages therefor,” and the said judgment was finalized by the Supreme Court (hereinafter referred to as “prior judgment”).

5) The preceding judgment recognized the tort liability under Article 750 of the Civil Act and the liability of the possessor of a structure under Article 758(1) of the Civil Act on the ground that he/she neglected to manage and check the instant elevator against Lebeter, on the ground that he/she occupied the instant elevator, respectively. The prior judgment recognized the liability of the possessor of a structure under Article 758(1) of the Civil Act against the Defendant, and recognized the liability of the Plaintiff as the insurer of Lebeter.

6) The Plaintiff paid KRW 59,173,462 to the Korea Workers’ Compensation and Welfare Service in accordance with the preceding judgment. Examining the above facts in light of the legal principles as seen earlier, lebeter was found to have been negligent in managing and inspecting the instant elevator in the preceding judgment, and even based on evidence, the instant accident is deemed to have been concurrent with the Defendant’s negligence, who neglected the duties of managing and inspecting the elevator, and neglected the duty of care to prevent damage for the installation and preservation of the elevator, as the possessor of the instant elevator. Therefore, the lower court should determine the portion of the Defendant’s negligence by examining the degree of negligence, which contributed to the instant accident.

Nevertheless, the lower court erred by misapprehending the facts against the rules of evidence and misapprehending the legal doctrine on the right of recourse between the quasi-joint and several obligors, thereby failing to exhaust all necessary deliberations, without examining the aforementioned circumstances. The grounds of appeal assigning this error are with merit.

3. Conclusion

Therefore, the part of the lower judgment against the Defendant is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Jae-young

Justices Park Young-young

Justices Kim In-bok, Counsel for defendant

Justices Kim Jong-il