Hyundai Maritime Fire Insurance Co., Ltd. (Law Firm Dowon, Attorneys Im-ho, Counsel for the plaintiff-appellant)

Reference Non-Life Insurance Co., Ltd. (Law Firm Name, Attorneys Hong-jin et al., Counsel for the plaintiff-appellant)

April 5, 2017

1. The defendant shall pay to the plaintiff 89,256,005 won with 15% interest per annum from November 22, 2016 to the day of full payment.

2. The costs of the lawsuit are assessed against the defendant.

3. Paragraph 1 can be provisionally executed.

The same shall apply to the order.

1. Basic facts

A. The Plaintiff is an insurer who has concluded an automobile insurance contract with respect to Nonparty 1’s (vehicle number 1 omitted) K5 vehicles (hereinafter “Plaintiff’s vehicle”), and the Defendant is the insurer who has concluded the automobile insurance contract with respect to the vehicle (vehicle number 2 omitted) owned by the KTren (hereinafter “Defendant vehicle”).

B. At around 03:40 on September 2, 2014, Nonparty 2 driven the Defendant’s vehicle and driven the Defendant’s vehicle into the second line among the two-lanes of the parallel of the parallel of the coast guard in the Seocheon-gun, Seocheon-gun, Seocheon-gun, Seocheon-gun, and caused an accident where the Defendant’s vehicle was moved to the Defendant. After about five minutes, Nonparty 1 driven the Plaintiff’s vehicle and driven the Defendant’s expressway at the point of the said first accident, and caused an accident that shocking the Defendant’s vehicle while driving the Plaintiff’s vehicle at the point of the said first accident (hereinafter “instant accident”).

C. Nonparty 3, who was accompanied by the instant accident, was injured by Nonparty 3, and the Plaintiff paid Nonparty 3 totaling KRW 218,512,010 from November 10, 2014 to October 17, 2016, with medical expenses, agreed fees, etc., and the Plaintiff returned KRW 20,000,000 from the Defendant on October 31, 2016 to the insurance proceeds.

D. On December 11, 2014, after the above accident, the head of the Defendant’s ○○○ Compensation Center ( Nonparty 4 in charge) sent a written request for correction to the Plaintiff on the statement of negligence that the rate of both parties related to the above accident is calculated to 50% and changed to 50%. On December 19, 2014, the head of the Plaintiff △△△△ Compensation Center (the employee Nonparty 5 in charge) sent a written request for consent to the purport that the Defendant calculated the rate of both the Plaintiff and the Defendant’s fault to the Defendant at 50%, and the Defendant’s △○ Compensation Center consented to the above rate of negligence on the same day.

E. Meanwhile, when there is a negligence on the part of the injured party, the enforcement rules of the mutual agreement on the deliberation of the dispute over the reimbursement of automobile insurance (hereinafter “instant rules”) have the following provisions regarding the claim for reimbursement between the insurers.

Article 45 (Compensation for Application of Contributory Negligence) (1) Where it is possible to investigate whether the fault of the victim can be applied to the other passenger and to apply the fault of the victim, lineal ascendants and descendants, etc., the shipowner shall handle the fault of the victim and shall not claim for the portion.

(2) Notwithstanding the provisions of the above paragraph (1), if there is a dispute as to whether applying negligence on the part of the victim is possible, the ship manager shall notify the latter manager thereof (including electronic mail or facsimile) and hear his/her opinion.

(3) If no objection is raised as a result of notification given to a post-treatment pursuant to the above paragraph, or a post-treatment agent fails to present his/her opinion within ten days from the date of notification, the post-treatment agent may first compensate and request the post-treatment agent for compensation.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 4, Eul evidence No. 1, the purport of the whole pleadings

2. Determination on this safety defense

A. The defendant asserts to the effect that Article 45 of the Code of this case applies to the non-party 2 and the non-party 3, who is the driver of the defendant vehicle, constitutes a lineal family with mother-and-child relationship, and that the content thereof is a conditional complaint agreement with the purport that the part overpaid in violation of Article 45 (2) and (3) of the above Code shall not be claimed unless it goes through the procedure under Article 45 (3) of the above Code. Thus, the plaintiff's lawsuit of this case shall be dismissed as it violates Article 45 of the

B. The purport of Article 45 of the Code of this case is to prevent the unnecessary circular concept by allowing one insurer of the joint tortfeasor to pay damages to the victim after deducting the part of the victim's fault in the event that the insurer pays damages to the victim. In addition, it is difficult to see that the provision of the subordinate lawsuit agreement to the effect that if the prior processing insurer fails to comply with the notification procedure under this provision, it cannot be seen as a provision of the subordinate lawsuit agreement to the effect that the claim for damages should not be made in any case. Thus, the defendant'

3. Judgment on the merits

A. Determination on the cause of the claim

1) Joint tort liability

According to the above facts, the accident of this case is an accident caused by a joint tort committed by the driver and the driver of the vehicle of this case. The plaintiff and the defendant agreed that the share of the accident of this case shall be 50:50, and such ratio of liability shall be the same as the fault of the victim in determining the scope of the plaintiff's liability for damages against the non-party 3.

2) Occurrence of indemnity

Where a person who has joined the same group due to two or more joint tort has suffered damage, the joint tortfeasor shall be liable in relation to the victim, but there are certain parts of the joint tortfeasor's liability in relation to the inside of the joint tortfeasor's liability. In consideration of the reduction rate in the amount of damages suffered by the same person, the joint tortfeasor shall calculate the amount to be compensated for the same person and calculate the amount to be borne according to the ratio of negligence among

Therefore, the Defendant, as the insurer of the Defendant vehicle, is obligated to pay the Plaintiff, who subrogated Nonparty 1, who is the joint tortfeasor, and the Plaintiff is obligated to pay the amount of KRW 109,256,005 equivalent to the victim’s fault ratio of KRW 50% out of the total amount of KRW 218,512,010, including the medical expenses paid by the Plaintiff to Nonparty 3 (=218,512,010 x 50%) and the remainder of KRW 89,256,05 (=109,256,005 - 20,000,000).

B. Judgment on the defendant's assertion

1) The Defendant asserts that the share of the driver of the Plaintiff’s vehicle in the instant accident should be at least 60%. However, there is an agreement between the Plaintiff and the Defendant on the share of the fault, as seen earlier, and as long as the Defendant’s assertion and proof regarding the invalidation of the said agreement, the Defendant should share the loss according to the agreed share of the fault. Therefore, the Defendant’s above assertion is without

2) The defendant asserts that the non-party 2 who is the driver of the defendant vehicle and the non-party 3 who is the passenger is a mother-and-child relationship and that the plaintiff should have compensated only for the remaining amount set off against the non-party 2's negligence by applying the victim's fault pursuant to Article 45 of the Code of this case. In case there is doubt about the application of negligence, only the compensation was made through the procedures under paragraphs 2 and 3 of the above Code, and since the plaintiff paid the insurance money without deducting the victim's negligence, it cannot respond to the plaintiff's claim for compensation of this case.

In light of the following circumstances, the aforementioned provision, along with the purport of Article 45 of the Rules as seen in the preceding part of the present case’s defense, does not purport to accept the unfair result that the party who entered the negligence by prohibiting the insurer from claiming the amount equivalent to the rate of fault on the part of the victim even in cases where the insurer should pay the full amount of treatment expenses regardless of the rate of fault on the part of the victim according to the standard for the payment of insurance money to the victim’s automobile insurance contract. (The remainder of KRW 168,512,010, excluding KRW 50,000,000,000,0000, which was paid by the Plaintiff to Nonparty 3). Furthermore, in the present case, the Defendant’s assertion on the above ground of Article 45 of the Rules cannot be viewed as a case where the Plaintiff and the Defendant agreed on both negligence three months after the occurrence of the instant accident and thus no dispute over whether to apply the victim’s negligence.

C. Sub-committee

Therefore, as the Plaintiff seeks, the Defendant is obligated to pay to the Plaintiff damages for delay calculated at the rate of 15% per annum from November 22, 2016 to the day of full payment, which is obviously the day following the delivery date of a copy of the instant complaint, as the Plaintiff seeks.

3. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted on the grounds of its reasoning, and it is so decided as per Disposition.

Judges Lee Dong-sik