[1] In a case where the fire insurance and the fire insurance that the owner of a building, the lessee of which has subscribed for the leased building with the purpose of insurance, are in a relationship of double insurance with the owner of the building as the insured, whether the insurer of the fire insurance, which caused the fire in the leased building due to the lessee’s liability, may exercise the lessee’s right to claim subrogation against the lessee even if the insurer of the fire insurance, who has paid the owner the amount of double insurance due to the occurrence of the fire, was paid by the insurer of the lessee’s fire insurance (affirmative) and the scope thereof / Whether the insurer of the fire insurance concurrently holds the position of the liability insurer to indemnify the lessee’s liability for damages against the fire (affirmative)

[2] The case holding that in a case where Party A is liable for damages to a person who has a legitimate right to the property by causing damage to the property owned, occupied, leased, used, protected, managed, or controlled by the contractor or the insured under the special terms and conditions of the liability insurance contract concluded with Party C, which was destroyed by a fire, while the main store was operated by Party A on the leased store of the building owned by Party B, the case holding that Party C is exempted from liability for damages incurred to the above store under the liability insurance contract

[1] In a case where a fire insurance that the lessee of a building purchased with a leased building for the purpose of insurance (hereinafter “Lessee’s fire insurance”) and a fire insurance that the owner of a building purchased with a building for the purpose of insurance (hereinafter “owner’s fire insurance”) are in a relationship of double insurance with the owner of the building as the insured, if the insurer of the owner’s fire insurance caused a fire in a leased building due to a cause attributable to the lessee and paid the insurance proceeds to the owner, the insurer of the fire insurance can exercise the right to claim by subrogation against the lessee pursuant to Article 682(1) of the Commercial Act even if the insurer of the fire insurance was paid the double insurance contributions from the insurer of the lessee’s fire insurance pursuant to Article 672(1) of the Commercial Act. However, from the insurance proceeds paid to the owner, the amount calculated by deducting the share of double insurance paid by the insurer of the lessee’s fire insurance from the amount of insurance proceeds

Meanwhile, if the insurer of the lessee’s fire insurance is also in the position of the liability insurer to compensate for the lessee’s damages against the fire, the insurer of the owner’s fire insurance can claim the same amount to the lessee’s fire insurance insurer pursuant to Article 724(2) of the Commercial Act on the direct claim for liability insurance.

[2] Where Party A: (a) destroyed part of the building, including a store, due to a fire while operating a store owned by Party B; (b) among the comprehensive property insurance contracts for the stores, etc. that Party C concluded with Party C, the case holding that Party A was exempted from liability insurance contracts for liability for damages incurred to the party who has a legitimate right to the relevant property because the property owned, occupied, leased, used, protected, managed, or controlled by the contractor or the insured was damaged; and (c) the store occupied and used by Party B leased from Party B constitutes “property leased by the insured” as stipulated in the exemption clause; and (d) Company C was exempted from liability for damages incurred to Party C’s store

[1] Articles 672(1), 682, 683, 719, and 724(2) of the Commercial Act / [2] Articles 719 and 724(2) of the Commercial Act, Article 105 of the Civil Act

[1] Supreme Court Decision 2009Da42819 Decided December 24, 2009 (Gong2010Sang, 224) Supreme Court Decision 2010Da50694 Decided October 28, 2010

Samsung Fire Insurance Co., Ltd.

Defendant 1 and one other (Law Firm Sejong, Attorneys Kim-hwan et al., Counsel for the defendant-appellant)

Seoul Central District Court Decision 2013Na7768 Decided October 8, 2013

The part of the judgment below against Defendant Hyundai Marine Fire Insurance Co., Ltd. is reversed, and that part of the case is remanded to Seoul Central District Court Panel Division. Defendant 1’s appeal is dismissed. The costs of appeal between the Plaintiff and Defendant 1 are assessed against Defendant 1.

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

1. As to the Defendants’ grounds of appeal

A. In a case where a fire insurance that the lessee of a building purchased the leased building with the purpose of insurance (hereinafter “Lessee’s fire insurance”) and the fire insurance that the owner of the building purchased with the building for the purpose of insurance (hereinafter “owner’s fire insurance”) are in a relationship of double insurance with the owner of the building as the insured, if the insurer of the fire insurance caused a fire in the leased building due to a lessee’s fault and paid the insurance proceeds to the owner of the building, the insurer of the fire insurance can exercise the lessee’s right to claim subrogation against the insurer pursuant to Article 682(1) of the Commercial Act even if the insurer of the fire insurance was paid the double insurance contributions from the insurer of the lessee’s fire insurance pursuant to Article 672(1) of the Commercial Act. However, if the insurer of the fire insurance concurrently compensates for the lessee’s liability for damages against the fire, such as the owner’s liability insurance, the insurer of the fire insurance can claim reimbursement against the insurer pursuant to subrogation pursuant to Article 682(1) of the Commercial Act.

B. Comprehensively taking account of the evidence adopted, Defendant 1: (a) operated the second floor of the instant building owned by the Nonparty 1 (hereinafter “instant store”); (b) there was an accident that part of the instant building, including the instant store, was destroyed by fire caused by the cooling house installed in the instant store (hereinafter “instant fire”); and (c) the Nonparty concluded a fire insurance contract on the instant building including the instant store (hereinafter “Plaintiff’s insurance contract”) between the Plaintiff and Hyundai Maritime Fire Insurance Co., Ltd. (hereinafter “Defendant Hyundai 1”); (d) concluded a comprehensive insurance contract on the instant store and its house and facilities with the Defendant 17% liability insurance proceeds, and the said insurance contract constituted the instant fire insurance contract with the Defendant 2 and the Defendant 70% liability insurance proceeds of the instant building (hereinafter “instant fire insurance contract”); and (e) concluded the instant insurance contract with the Defendant 170% liability insurance proceeds of the instant vessel and its house and facilities, and (e) concluded the instant insurance contract with the Defendant 176% liability insurance proceeds of the instant vessel and facilities, and its total liability insurance proceeds of the Plaintiff 17.

C. In light of the legal principles as seen earlier, the lower court’s determination rejecting the Defendants’ assertion that the Plaintiff’s subrogation claim is not permissible is justifiable. In so doing, it did not err by misapprehending the legal principles as to the relationship between the double insurance contribution claim and the insurer’s subrogation claim, contrary to what is alleged

However, according to the legal principles as seen earlier, the Defendants, barring any other circumstances, as to the store of this case subject to double insurance: ① KRW 10,529,70,705, which is the part of Defendant 1’s liability (i.e., KRW 17,722,517 - KRW 7,192,812) out of the amount of double insurance premium paid by the Plaintiff to the Nonparty at KRW 17,722,517 - KRW 7,192,812, which is the amount of double insurance premium paid by the Plaintiff to the Nonparty (i.e., KRW 10,529,705 x below KRW 70%); ② as to the building of this case outside of the store of this case, the Defendants did not have an obligation to reverse the lower court’s judgment on the grounds that the Plaintiff did not have any error in calculating the amount of double insurance premium to the Nonparty (= KRW 11,162,690,700 x 700).373137,737.37).7

2. As to the ground of appeal by Defendant Hyundai Sea

According to the records, Article 4(1)10 of the Special Clause of the Defendant Liability Insurance Contract provides that “The Defendant’s Liability Insurance Contract shall be held liable for damages to a person who has a legitimate right to the property by causing damage to the property owned, occupied, leased, used, protected, managed, or controlled by the contractor or the insured, or the property owned, occupied, leased, used, protected, managed, or controlled by the policyholder or the insured” (hereinafter “instant exemption clause”).

The purport of this exemption clause is to prevent the insured from taking such a exemption clause, in relation to the damage incurred to the property in such a case, at the same time as the victim is the perpetrator, and as a result, there is a similar phenomenon that the right to be compensated for the damage is extinguished as a result of confusion with the obligation to compensate for the damage. In addition, if the insurance profit to be protected by the insurance is reduced considerably, and in such a relationship, if the insured is allowed to compensate for the damage, it may cause a moral hazard that would cause excessive damage to the insured (see, e.g., Supreme Court en banc Decision 97Da19403, Apr. 23, 1998). The exemption clause of this case specifies the liability to compensate for the damage incurred to the leased property as one of the non-compensation damages. Defendant Hyundai Sea separately provides for an insurance policy (special guarantee of the lessee's liability) to compensate for the damage suffered by the insured from the legitimate owner of the right to the real property due to the loss caused by fire, and thus, Defendant 1 was exempted from the liability insurance policy of this case.

Meanwhile, according to the records, if the defendant fire insurance contract is a contract for another person, the defendant Hyundai Sea waives the insurer subrogation right against the policyholder, and if the policyholder compensates for damages incurred to the other person due to the insured event, the defendant Hyundai Sea may claim the payment of the insurance money to the defendant Hyundai Sea. The defendant 1 is entitled to claim the payment of the insurance money to the defendant Hyundai Sea in accordance with the above contract after he compensates the plaintiff who acquired the right to claim damages from the non-party or the non-party for damages caused by the fire of this case. However, the defendant Hyundai Sea does not directly bear the obligation to pay the insurance money to the plaintiff as to the damages incurred to the store of this case.

Nevertheless, the court below rejected Defendant Hyundai Sea’s claim for exemption pursuant to the exemption clause of this case and recognized Defendant Hyundai Sea’s obligation to pay insurance money to Plaintiff for the part of this case’s store. In so doing, the court below erred by misapprehending the interpretation of the exemption clause of this case and affecting the conclusion of the judgment. The Defendant Hyundai Sea’s ground of appeal pointing this out is with merit.

3. Conclusion

Therefore, the part of the judgment below against Defendant Hyundai Sea is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The appeal by Defendant 1 is dismissed, and the costs of appeal arising between the Plaintiff and the above Defendant are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices

Justices Shin Young-chul (Presiding Justice)