In cases where an insurer exercises or disposes of a claim for damages against a third party which caused damage to the insured, etc. before paying the insured amount (negative)

Where damage has occurred due to an act committed by a third party in accordance with Article 682 of the Commercial Act, the insurer who has paid the insured amount shall acquire the rights of the policyholder or the insured with respect to the third party within the limit of the amount paid, but if the insured, etc. exercises the rights with respect to the third party before the effect of subrogation by paying the insured amount takes place, the insurer shall not subrogate such part.

Article 682 of the Commercial Act, Article 399 of the Civil Act

Supreme Court Decision 76Da2119 Decided February 14, 1978, Supreme Court Decision 79Da1668 Decided December 26, 1979

Dongyang Fire & Marine Insurance et al., Counsel for the plaintiff-appellant

Attorney Seo Young Industrial Co., Ltd., Counsel for the defendant-appellant

Seoul High Court Decision 79Na2247 delivered on May 30, 1980

The appeal is dismissed.

The costs of appeal are assessed against the plaintiffs.

The grounds of appeal are examined.

According to Article 682 of the Commercial Code, in case of loss caused by a third party's act, the insurer who paid the insured amount shall acquire the rights of the policyholder or the insured against the third party to the extent of the amount paid. However, this is merely the purport of subrogationing the claim to the extent of the amount paid on the premise that the third party has the right to claim damages against the insured

Since the right to claim damages against the third party of the insured etc. is a claim for the non-performance of obligations or illegal acts, until the effect of subrogation occurs by the insurer by paying the insurance money, the insured etc. can exercise or dispose of the right against the third party, and the insurer cannot subrogate the part.

According to the reasoning of the judgment below, the court below acknowledged that the plaintiff et al. and the non-party international electrical industry corporation concluded an insurance contract on the real estate of this case; the defendant suffered a fire during the lease use of the insurance object, and as a part of the fire occurred, the non-party company and the defendant were 6,185,200 won before the plaintiff et al. paid the insurance proceeds; among them, a settlement was formed to exempt the defendant from the defendant's liability for damages caused by fire, and the defendant paid the above money, so the damage liability of the non-party company was extinguished; and the plaintiff et al.'s claim for damages caused by subrogation is groundless. According to the records, the court below's fact-finding and judgment are justified, and there is no reason to argue otherwise.

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

Justices Kim Young-ju (Presiding Justice)