[1] In a case where a third party, at the same time, is liable for damages arising from a tort or a default of obligation, and the insured files a claim for damages against him/her, whether the insured shall deduct the insurance money received from the insurer under the non-life insurance contract from the amount of the third party's liability for damages

[2] In a case where Gap insurance company paid insurance money to Byung who suffered from a fire at Eul's workplace, and then exercised the right of subrogation against Eul company, the case holding that Eul company may claim by subrogation the amount equivalent to the difference between the amount of Eul company's liability for damages and the remaining amount of damages on the ground that Eul company's liability for damages is less than the amount of the company's liability for damages since the remainder after deducting the insurance money paid to Byung from the total amount of damages suffered by Byung is less than the amount of the company's liability for damages

[1] Articles 390, 393, 396, 750, and 763 of the Civil Act; Articles 638, 665, and 682 of the Commercial Act / [2] Articles 393, 750, and 763 of the Civil Act; Articles 665 and 682 of the Commercial Act; Article 3 of the Liability for Realization Act

[1] Supreme Court en banc Decision 2014Da46211 Decided January 22, 2015 (Gong2015Sang, 237)

Hansung Damage Insurance Co., Ltd. (Law Firm Dowon, Attorneys Hong-ho et al., Counsel for the plaintiff-appellant)

Busan District Court Decision 201Na1448 decided May 1, 201

Seoul Southern District Court Decision 2015Na51000 decided August 21, 2015

The judgment below is reversed, and the case is remanded to Seoul Southern District Court Panel Division.

The grounds of appeal are examined.

1. In a case where a third party, at the same time, is liable to compensate for an insurance accident of a non-life insurance and at the same time, is liable to compensate for damages against the insured, the insurance money received from the insurer pursuant to the non-life insurance contract, is of a quid pro quo nature of the insurance premium paid by the insurer to the insurer in preparation for the occurrence of the insurance accident, and is separate from the third party's liability for damages.

Therefore, the above 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 limited scope by negligence offsetting, etc.; hereinafter the same shall apply). If the total amount of damages remains more than the amount of the third party’s liability to compensate for the damages, the third party may claim 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 third party may claim for the remainder amount of damages. In the latter case, the insurer may claim against a third party by subrogation the difference between the amount of the third party’s liability to compensate for damages and the amount of the remaining amount of damages (see Supreme Court en banc Decision 2014Da46211, Jan. 22, 2015, etc.).

2. The lower court recognized the Nonparty’s total amount of damages caused by the instant fire as KRW 9,098,554, and determined that the Defendant’s liability for damages was reduced to 70% pursuant to Article 3 of the Act on the Actual Liability for Fire Caused by the instant fire to be KRW 6,368,987 (i.e., KRW 9,098,554 x 70%). Based on its stated reasoning, the Plaintiff acquired a claim for damages equivalent to the same amount of damages against the Defendant by subrogation of the Nonparty pursuant to Article 682 of the Commercial Act by paying the insurance proceeds of KRW 5,884,209 to the Nonparty, based on the grounds in its stated reasoning, by which the Plaintiff paid the amount of damages of KRW 5,884,209 to the Nonparty. Not only falls under the case where the Plaintiff paid part of the insurance proceeds, but also the Nonparty’s remaining amount of damages against the Defendant (=6,368,987 won -5,84,209 won).

However, according to the reasoning of the judgment below and the records, the amount of the Defendant’s damage compensation liability that has been reduced pursuant to Article 3 of the Fire Liability Act is KRW 6,368,987, and the amount of the Nonparty’s damage caused by the fire of this case minus the Plaintiff’s insurance money paid to the Nonparty is KRW 3,214,345 (= KRW 9,098,554 - 5,884,209). Thus, according to the legal principles of the Supreme Court precedents as seen earlier, the Plaintiff may claim against the Defendant by subrogation within the extent of KRW 3,154,642 (=6,368,987 - 3,214,345) of the amount of the Defendant’s damage compensation liability and the Nonparty’s remaining amount of damage.

Therefore, the court below held that the plaintiff may claim against the defendant on the whole amount of KRW 5,884,209 for the insurance money paid to the non-party by subrogation of the insurer is contrary to the Supreme Court precedents seen earlier.

Ultimately, the judgment of the court below is erroneous in the judgment contrary to the Supreme Court's precedents under Article 3 subparagraph 2 of the Trial of Small Claims Act, and the ground of appeal assigning this error is with merit.

3. Therefore, the lower judgment is reversed, and 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 Park Poe-young (Presiding Justice)