[1] In a case where the ratio of negligence to each joint tortfeasor is different in the comparative negligence as to joint tort liability, the method of assessing the negligence of the victim

[2] The case holding that since the first and second drilling accidents occurred very close to time and place, it is impossible to divide the amount of damages caused by the second accident out of the total damages caused by the accident, and since the second and second accidents are objectively jointly related to such acts, the perpetrator shall be jointly and severally liable for the damages of the victim as joint tortfeasor, and even in offsetting negligence, the fault of the victim shall be assessed as a whole as negligence of all joint tortfeasors

[1] Articles 396, 760, and 763 of the Civil Act / [2] Articles 396, 760, and 763 of the Civil Act

[1] Supreme Court Decision 96Da55631 delivered on June 12, 1998 (Gong1998Ha, 1858) Supreme Court Decision 99Da48245 delivered on September 8, 200 (Gong2000Ha, 2074) Supreme Court Decision 2005Da32999 Delivered on June 14, 2007 (Gong2007Ha, 1045)

Heung National Fire Insurance Co., Ltd. (Attorney Lee Jong-sung, Counsel for the plaintiff-appellant)

Samsung Fire & Marine Insurance Co., Ltd. and two others (Attorneys Jeon Jae-jin et al., Counsel for the plaintiff-appellant)

Seoul Central District Court Decision 2007Na8722 Decided February 1, 2008

The part of the judgment below against the plaintiff is reversed, and that part of the case is remanded to the Panel Division of the Seoul Central District Court.

The grounds of appeal are examined.

1. According to the reasoning of the judgment below, on April 29, 202, the court below determined that the non-party 2 suffered damages from the non-party 2's accident, the non-party 2's accident, the non-party 3 accident of the non-party 2, and the non-party 1, the non-party 2, the non-party 2, the non-party 3, the non-party 2, the non-party 3, the non-party 2, the non-party 3, the non-party 2, the non-party 3, the non-party 2, the non-party 3, the non-party 2, the non-party 2, the non-party 2, the non-party 3, the non-party 2, the non-party 2, the non-party 2, the non-party 2, the non-party 3, the non-party 2, the non-party 2, the non-party 2, the non-party 2, the non-party 1, the non-party 2, the plaintiff 2, the plaintiff 2, the plaintiff 2, the plaintiff 2, the second.

2. However, the lower court’s determination is difficult to accept for the following reasons.

In the establishment of a joint tort, it is sufficient that there is no common intent or common perception among the joint tortfeasor, and there is an objective common nature related to each act objectively. Thus, liability for damages should not be exempted if damages were caused by the related joint act. In addition, liability for joint tort is not individually seeking damages from each act of an individual of the tortfeasor, but pursuing liability for the joint tort jointly committed by the tortfeasor. In case of offsetting negligence on the part of the victim, even if the court has different ratio of negligence from each joint tortfeasor, the victim's negligence should not be individually assessed against each joint tortfeasor, but all of them should be assessed as a whole by negligence (see Supreme Court Decision 96Da55631 delivered on June 12, 1998).

However, according to the facts acknowledged by the court below, the "the first accident" and "the second accident" of this case, which occurred by the non-party 1 and the defendant 3, are one-time and at a very close location, and it is not possible to distinguish the amount of damages caused by the second accident from the total damages caused by the accident of this case. Thus, the above first and second accidents are objectively different, and there is a common relation with the act. Therefore, the non-party 1 and the defendant 3, as joint tortfeasor, bear a joint and several liability for all damages caused by the second and second accident (in case where the victim's negligence is offset by the non-party 2, his negligence should be assessed as a joint tortfeasor, as a whole with the negligence of the non-party 1 and the defendant 3).

Nevertheless, the court below erred by misapprehending the legal principles as to the establishment of joint tort and the scope of damages, which affected the conclusion of the judgment.

3. Therefore, the part of the lower judgment against the Plaintiff is reversed, and that part of 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 Kim Nung-hwan (Presiding Justice)