[1] In a case where a victim who received insurance benefits under the Industrial Accident Compensation Insurance Act or the National Health Insurance Act voluntarily deducted the insurance benefits and claims for damages against a third party, whether the amount of damages subject to comparative negligence includes the insurance benefits (affirmative)

[2] The legal nature of the right to direct action recognized as the victim under Article 724(2) of the Commercial Act (=the legal interest rate applicable to the claim for damages) and the damages for delay (=the private legal interest rate)

[1] When a victim who received insurance benefits under the Industrial Accident Compensation Insurance Act or the National Health Insurance Act claims for damages against a third party, if the victim's negligence competes with the third party, the amount of damages calculated first shall be offset by negligence, and the insurance benefits shall be deducted from the amount of damages calculated first, and even if the victim voluntarily deducted the insurance benefits and claimed damages, the amount of damages subject to comparative negligence shall

[2] The legal nature of the victim’s direct right to claim under Article 724(2) of the Commercial Act is that the insurer concurrently takes over the insured’s obligation to compensate for damages against the victim, and the victim is the right to claim damages against the insurer, and the insured’s right to claim damages against the insurer is not a right equivalent thereto. Thus, the legal interest rate of 5% per annum, not the commercial interest rate of 6% per annum, shall apply to damages for delay.

[1] Articles 396, 750, and 763 of the Civil Act / [2] Article 724 (2) of the Commercial Act, Article 379 of the Civil Act

[1] Supreme Court Decision 2010Da2428, 2435 Decided July 15, 2010 (Gong2010Ha, 1575) / [2] Supreme Court Decision 2018Da245702 Decided January 17, 2019 (Gong2019Sang, 466)

Plaintiff

DB Insurance Co., Ltd. (formerly: Dongbu Fire Insurance Co., Ltd.) (Law Firm Inn&W, Attorneys Gyeong-soo et al., Counsel for the plaintiff-appellant-appellee)

Seoul High Court Decision 2015Na2032910 decided January 7, 2016

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

Based on its stated reasoning, the lower court determined that the Defendant, as an insurer of the instant insurance contract, was liable to pay damages to the Plaintiff pursuant to Article 724(2) of the Commercial Act.

In light of the relevant legal principles and records, the above determination by the court below is just and acceptable, and contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal principles on tort or by misapprehending the rules of evidence or incomplete deliberation

2. Regarding ground of appeal No. 2

Where a victim, who received insurance benefits under the Industrial Accident Compensation Insurance Act or the National Health Insurance Act, files a claim for damages against a third party, and the victim's negligence competes with the third party, the amount of damages calculated first shall be offset by negligence, and the insurance benefits shall be deducted from the amount of damages calculated, and even in cases where the victim voluntarily deducts insurance benefits and claims for damages, the amount of damages subject to offsetting by negligence shall be included (see Supreme Court Decision 2010Da2428, 2435, Jul. 15, 2010, etc.

According to the reasoning of the judgment below, the court below calculated the amount of insurance benefits received by the plaintiff under the National Health Insurance Act, without including the above insurance benefits in the damages for the treatment expenses claimed by the plaintiff, in calculating the amount of damages for the treatment expenses among the active damages of this case. In light of the aforementioned legal principles, the court below erred by misapprehending the legal principles concerning the calculation of damages for the victim who received insurance benefits, thereby affecting the conclusion of the judgment. The ground of appeal pointing this out is with merit.

3. Regarding ground of appeal No. 3

The legal nature of the victim’s direct right to claim under Article 724(2) of the Commercial Act is that the insurer concurrently takes over the insured’s obligation to compensate for damages against the victim, and the victim is the right to claim damages against the insurer, and the insured’s right to claim damages against the insurer is not a right equivalent thereto (see Supreme Court Decision 2018Da245702, Jan. 17, 2019). As to damages for delay, the statutory interest rate of 5% per annum, not commercial interest rate of 6% per annum, shall apply.

The court below held that the defendant is liable to pay damages to the plaintiff pursuant to Article 724(2) of the Commercial Act, but ordered payment of 6% interest per annum, which is a commercial statutory interest rate, with respect to delay damages. The court below erred by misapprehending the legal principles on direct claim by the victim or the legal principles on commercial statutory interest rate, which affected the conclusion of the judgment. The ground of appeal assigning this error is with merit.

4. Conclusion

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Seon-soo (Presiding Justice)