[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 corporation claimed damages for the remainder after deducting the non-life insurance amount received from Byung insurance company from the total amount of damages caused by fire in the warehouse of Eul corporation, the case holding that the court below erred by misapprehending the legal principles in calculating the final damages of Eul corporation by deducting the non-life insurance amount received from Eul company from the amount of its damages

[1] In a case where a third party, at the same time, is liable to compensate for an insurance accident of non-life insurance, and the insured claims for damages against him/her, the insurance money received from the insurer under the non-life insurance contract, has the nature of consideration for the insurance premium paid by the insurer to the insurer in preparation for the occurrence of the insurance accident, and it is separate from the third party's liability for damages. Therefore, it shall not be deducted from

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 a 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, and 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 amount of damages (Article 682 of the Commercial Act).

[2] In a case where Company A claimed the remainder of the total amount of damages caused by fire in the warehouse of Company B, which was deducted from the non-life insurance amount received by Company C, the case holding that the lower court erred by misapprehending the legal doctrine in calculating the final amount of damages of Company B by deducting the non-life insurance amount received by Company A from the total amount of damages, on the ground that the remainder after deducting the non-life insurance amount received by Company A from the total amount of damages exceeds the amount of the company's damages liability, although Company B is liable to pay the total amount of damages to Company A, the lower court calculated the final amount of 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; Article 665 of the Commercial Act; Article 3(2) of the Commercial Act;

[1] Supreme Court Decision 2008Da27721 Decided April 9, 2009 (overruled)

Aju Station Co., Ltd. (Bae & Yang LLC, Attorneys Kim Dong-gu et al., Counsel for the plaintiff-appellant)

Masung A.N.B (Law Firm Jeong, Attorneys Lee Jong-si et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2013Na69431 decided June 25, 2014

The part of the lower judgment against the Plaintiff is reversed, and that part of the case is remanded to the Seoul High Court. The Defendant’s appeal is dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the Defendant’s ground of appeal

Based on its stated reasoning, the lower court determined that the Defendant, the possessor of the instant warehouse, was liable to compensate the Plaintiff for the damages incurred by the Plaintiff due to the instant fire pursuant to Article 758(1) of the Civil Act, on the ground that there was a defect in the installation and preservation of the structure in the instant warehouse at the time of the original adjudication.

In light of the relevant legal principles and records, the above determination by the court below is justifiable. In so doing, it did not err by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal principles as to defects in the installation

2. Plaintiff’s ground of appeal

A. 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 for damages against the insured, the insurance money that the insured received from the insurer under the non-life insurance contract, has the nature of quid pro quo of the insurance premium paid to the insurer up to the time in preparation for the occurrence of the insurance accident, and is separate from the third party's liability for damages. Therefore,

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 a 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, and 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 amount of damages (Article 682 of the Commercial Act).

On the contrary, Supreme Court Decision 2008Da27721 Decided April 9, 2009, etc., which held to the effect that, in the event of a third party who is liable for damages due to an accident of an accident of an accident of an accident of an accident of an accident involving non-performance of obligation, the said insurance shall be deducted from the amount of damages limited by comparative negligence, etc. in the event of calculating his/her amount of damages to the insured, shall be modified

B. The court below recognized the Plaintiff’s total amount of damages caused by the instant fire as KRW 662,043,106 and reduced the Defendant’s liability for damages by 60% pursuant to Article 3(2) of the Fire Liability Act, thereby 397,225,863 won (i.e., KRW 662,043,106 x KRW 60% x less than KRW 60%). The court below accepted the Plaintiff’s claim within the scope of the said amount, on the ground that the Defendant was ultimately liable for damages, 72,985,085 won (=397,225,863 won - KRW 324,240,778 - KRW 324,240,778, which was the remainder after deducting the non-life insurance amount received from the Plaintiff Co., Ltd., Ltd., which had concluded the fire insurance contract.

However, according to the judgment below, the defendant's liability amount reduced pursuant to Article 3 (2) of the Act on Fire Liability is 397,225,863 won, and the remaining amount calculated by deducting 324,240,778 won from 662,04,106 won of the plaintiff's total amount of damages caused by the fire of this case after deducting 324,240,778 won from 337,802,328 won (i.e., 662,043,106 - 324,240,778 won). Thus, according to the above legal principles, the defendant is liable to pay the plaintiff the above 337,802,328 won as compensation for damages.

In calculating the defendant's final amount of damages, the court below erred by misapprehending the legal principles as to the scope of damages in the case where the insured received non-life insurance, thereby making a judgment, thereby deducting KRW 324,240,778 from the defendant's liability amount of damages 397,225,863.

3. Conclusion

Therefore, the part of the judgment below against the plaintiff is reversed, and that part of the case is remanded to the court below for a new trial and determination. The defendant's appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Shin Young-chul (Presiding Justice)