Samsung Fire Insurance Co., Ltd. (Attorney Kim Tae-tae, Counsel for defendant-appellant)

DB Insurance Co., Ltd. and one other (Law Firm Hank, Attorneys Jeon Young-young, Counsel for the plaintiff-appellant)

November 29, 2018

Seoul Central District Court Decision 2017Da5106285 Decided May 10, 2018

1. Of the judgment of the court of first instance, the part against the Defendants in excess of the following amount ordered to be paid is revoked, and the Plaintiff’s claim against the Defendants in such revoked part is dismissed

The Defendants jointly pay to the Plaintiff 102,348,481 won and 35,099,418 won among them to the Plaintiff; 67,249,063 won to the remainder; 5% per annum from June 29, 2017 to January 29, 2019; and 15% per annum from the next day to the day of full payment to the day of full payment.

2. The defendants' remaining appeals are dismissed, respectively.

3. Of the total litigation costs, 50% is borne by the Plaintiff, and the remainder is borne by the Defendants, respectively.

1. Purport of claim

The Defendants jointly pay to the Plaintiff the amount of KRW 230,423,79 and KRW 50,142,027 from April 25, 2017, and the remaining KRW 180,281,772 from June 29, 2017 to the date of full payment.

2. Purport of appeal

Of the judgment of the first instance, the part against the Defendants ordering payment in excess of KRW 25,071,014 is revoked, and all of the Plaintiff’s claims against the Defendants corresponding to the revoked part are dismissed.

1. Basic facts

This part of the judgment is citing the reasoning of the judgment in accordance with the main sentence of Article 420 of the Civil Procedure Act, as it is stated in the corresponding part of the reasoning of the judgment of the first instance except for the following cases:

The third chapter of the judgment of the court of first instance is as follows: "Therefore, insurance of movable property among insurance related to Schlage is not less than the insurable value and not less than the insurable value." In addition, insurance of movable property is not less than the third one, and the third chapter below is added to the following table.

The insurable value of purchase of insurance for the structure and specification of the sign object included in the main text shall be 100,000,000,0000,0000 won 95,776,718 won 2 movable assets inventory assets of 194,980,000,000 won 194,980,545 won in total, and 200,000,000 won in total, 290,757,263 won in the aggregate of 2,00,00 won in 194,980,57, and

In the fourth instance judgment of the first instance court, the first instance court stated that “The amount of KRW 180,281,772 was paid with insurance money,” “The total amount of KRW 80,281,772, total amount of KRW 194,980,545, total of KRW 180,281,772, total of KRW 180,000, total of KRW 194,980,545, total of KRW 194,980,545, was paid with insurance money.”

2. The plaintiff's assertion and judgment

A. Summary of the plaintiff's assertion

This part of the reasoning of the judgment is the same as the corresponding part of the reasoning of the judgment of the first instance, and thus, it is accepted by the main sentence of Article 420 of the Civil Procedure Act

B. Determination

This part of the judgment is the same as the corresponding part of the judgment of the court of first instance, except for a dismissal or addition as follows, and thus, it is acceptable in accordance with the main sentence of Article 420 of the Civil Procedure Act.

○ 6th page 9 of the first instance judgment, “after payment” was added to “in accordance with Article 682(1) of the Commercial Act,” and “Defendant Company” in paragraph 10 of the same Article added to “in accordance with Article 724(2) of the Commercial Act.”

○○○○○○○○○ factory, adjacent to the instant factory, destroyed the instant fire to the instant fire, and Nonparty 1 filed a lawsuit against the Defendants, stating that “The Defendant shall limit the Defendants’ liability scope to not more than 50% in this case, taking into account the fact that Nonparty 1, who suffered from the instant fire, was recognized as 50% of the Defendants’ negligence in the relevant case filed against the Defendants, and that Nonparty 1 was in custody of highly flammabled articles. According to the evidence No. 3, Nonparty 1’s ○○○○ factory, adjacent to the instant factory, was destroyed to the instant fire, and that Nonparty 1’s liability limitation was limited to 50% of the Defendants’ liability (Seoul Central District Court Decision 2017Da5126340, Seoul Central District Court Decision 2017Na86868), and thus, Nonparty 1’s liability limitation liability limitation should be applied to Nonparty 1’s building, which was the first day of the instant fire, to the extent that the Defendants’ liability limitation was applied to Nonparty 1 and Nonparty 1.

○ In the judgment of the court of first instance, the 7th to 9th 14th 1th 1th 3th 1st 1st 1st 1st 2

[C] Whether the exercise of the Plaintiff’s right to indemnity is restricted

(1) The defendants' assertion

In the event that an insurer pays part of the insurance proceeds payable by the insurer under the proviso of Article 682(1) of the Commercial Act, the insurer may exercise its rights to the extent that it does not infringe on the rights of the insured. Damage to Schlage caused by the instant fire is KRW 275,262,317, which is the damage to the subject matter of insurance and KRW 102,30,562,317, which is the damage to the non-insured portion of the insurance. The Plaintiff paid only KRW 180,281,772, which is a part of the insurance proceeds, as the insurance proceeds, only KRW 180,280,280,562,317, - 180,281,772, which is the remainder of the damages to the Defendants’ damages to KRW 187,581,87,187,00,000,0000,000 won. However, considering the limitation on liability, the Defendants are not liable to the Defendants’ damages to the Defendants’ damages to KRW 1818181,587.

Shed Judgment

㈎ 상법 682조 단서의 적용 여부

The insured may claim against a third party for the performance of his/her liability to compensate for any remaining losses without compensating for the insurance proceeds received from the insurer (However, the liability within the scope limited by comparative negligence, etc.). If the amount of the entire amount of damages remains more than the amount of the third party’s liability, the insured may claim against the third party for the full amount of his/her liability to compensate for the damages. If the remaining amount of damages is less than the amount of the third party’s liability to compensate for the damages, the insurer may claim against the third party for the remainder (see Article 682 of the Commercial Act; Article 46211, Jan. 22, 2015).

However, the proviso of Article 682 of the Commercial Act provides that "if the insurer has paid part of the insurance money to be compensated, he/she may exercise his/her rights to the extent that it does not infringe the rights of the insured." Of them, Schlage divided the building and movable property, and entered into an insurance contract between the Plaintiff, which exceeds the insurable value, while the amount of insurance coverage of the building exceeds the insurable value, while the amount of insurance coverage of movable property does not reach the insurable value, the Plaintiff paid the total amount of damages as insurance money with respect to the building and paid KRW 100,000,000 as insurance money with respect to movable property, the Plaintiff paid the total amount of damages as insurance money with respect to the movable property. Thus, even in this case, it is a question whether the exercise of the insurer's subrogation right can be restricted

First of all, in light of the fact that Schlage-related insurance is a partial insurance, it is reasonable to view that Schlage-related insurance was concluded as a single insurance contract covering both a building and movable property, and that 200,000,000 won, which is the total purchase amount of insurance, is less than 290,757,263,000 won as the total purchase amount of insurance, is less than the insurable value (see Supreme Court Decision 201Da100312, Aug. 30, 2012).

Furthermore, in the case of partial insurance, the insurer's right of subrogation under Article 682 of the Commercial Act is recognized as a policy to prevent double acquisition of the insured, considering whether the insurer's exercise of the insurer's right of subrogation is limited in the case of partial insurance, the scope of the insurer's right to a third party which the insurer may subrogate should comply with if it is expressly stipulated in the insurance clause. However, if it is not so, it should be interpreted favorably to the customer in accordance with the general principle of interpretation of the contract, so long as it does not take advantage of the damages or losses actually suffered by the insured, it should be limited within the scope that does not infringe the insured's right (see Supreme Court Decision 201Da100312, Aug. 30, 2012). According to the evidence evidence No. 12-4, it is reasonable to view the scope of the insurer's right to subrogation under the general terms and conditions related to insurance, as it does not infringe the insurer's right of subrogation under the general provisions of Article 13(1)3).

㈏ 구상권의 구체적인 범위

First, with respect to the damages suffered by Schlage, the insured, the first day of the instant fire, ① Japan, as to the building, KRW 80,281,772 on the subject matter of the instant fire, KRW 194,980,545 on the movable property, and KRW 80,281,72 on June 28, 2017, KRW 180,281,772 on the above building, and KRW 180,281,72 on the total damages of KRW 20,70 on the movable property, KRW 207, KRW 207, KRW 207, KRW 207, KRW 207, KRW 207, KRW 207, KRW 207, KRW 207, KRW 280 on the ground that Schlage received the above insurance money as well as KRW 207, KRW 207, KRW 250, KRW 270 on the subject matter of the instant accident.

Furthermore, under the limitation on liability as seen earlier, Schlage had the right to claim damages against Defendant 2, 169,549,063 won (i.e., KRW 282,581,772 won x 60% x less than KRW 60%) out of the above 282,581,772 won (i.e., KRW 102,30,300,000, and KRW 102,30,000 as seen earlier, and KRW 67,249,063 won (i.e., KRW 169,549,0630 x below KRW 60 x 60%). Meanwhile, Japan did not receive the total amount of damages from KRW 282,581,72, and KRW 200,000 as seen earlier, Japan’s insurance money can still be claimed against Defendant 2 pursuant to the above legal principles, and only the remainder of the Defendants’ liability to claim damages against Defendant 26302,2630.

D) Sub-determination

Therefore, the Defendants jointly share with the Plaintiff: ① KRW 35,09,418 (50,142,027 x less than KRW 0.7 and less than KRW 67,249,063) and ② KRW 102,348,481 (= + KRW 35,09,418 + KRW 67,249,063 + KRW 67,249,063) and KRW 35,09,418, whichever is the day following the day on which the Plaintiff paid insurance money to Nonparty 2; ② From April 25, 2017, the remaining KRW 67,249,063 from the day following the day on which the Plaintiff paid the insurance money to Nonparty 2; ② Whether the Defendants’ obligation to pay insurance money from June 29, 2017 to the day following the day on which the Plaintiff paid the insurance money to Nonparty 1 is deemed reasonable to determine the existence of the Defendants’ obligation to pay damages.

3. Conclusion

Therefore, the plaintiff's claim against the defendants shall be accepted within the scope of the above recognition, and the remaining claims shall be dismissed as it is without merit. Since the part of the judgment of the court of first instance against the defendants, which partially different conclusions are unfair, part of the appeal against the defendants shall be accepted, and the plaintiff's claim against the defendants falling under the revoked part shall be dismissed, and the remaining appeal by the defendants shall be dismissed as it is without merit.

Judges Kim Jong-soo (Presiding Judge)