[1] Whether the insurer can exercise the insurer's subrogation right under Article 682 of the Commercial Code where a person who caused an insurance accident in the interpretation of an insurance contract constitutes "insured" (negative)

[2] In a case where the subject matter and risk of an insurance are determined in a non-life insurance policy, and the insured and insured interest are unclear, the standard of determining the insured

[3] The case holding that the court below erred in the misapprehension of legal principles as to the leased portion, etc., in a case where Eul Company exercised the right of subrogation of the insurer after paying the insurance money to Byung as to the leased portion, etc., in a case where Gap Company's management and operation committee entered into a comprehensive insurance contract with Eul on the property of the commercial building, etc. in the distribution complex, and Eul company's owner of the commercial building caused explosion accident in the restaurant operated by Eul in its store and other sectional owners of the commercial building; Eul's exclusive ownership and leased portion were damaged

[1] Article 682 of the Commercial Act / [2] Articles 639 and 665 of the Commercial Act / [3] Articles 639, 665, and 682 of the Commercial Act

[1] Supreme Court Decision 93Da1770 delivered on June 29, 1993 (Gong1993Sang, 682), Supreme Court Decision 94Da4813 delivered on June 9, 1995 (Gong1995Ha, 2365), Supreme Court Decision 2000Da33089 Delivered on June 1, 2001 (Gong2001Ha, 1506) / [2] Supreme Court Decision 2002Da33496 Delivered on January 24, 2003 (Gong2003Sang, 714), Supreme Court Decision 2006Da72093 delivered on February 22, 2007 (Gong2007Sang, 498), Supreme Court Decision 60Da5610360 delivered on June 16, 205 (Gong2009)

Mez Fire Insurance Co., Ltd. (Law Firm N&W, Attorneys Kim Jong-Un, Counsel for the plaintiff-appellant)

Defendant (Law Firm Number, Attorneys Yang Jong-soo et al., Counsel for defendant-appellant)

Seoul Central District Court Decision 2011Na15116 decided October 12, 2011

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

The grounds of appeal are examined.

The insurer subrogation under Article 682 of the Commercial Act is a system that an insurer who has paid the insured amount acquires the right of a policyholder or the insured to a third party where the loss caused by an insured accident occurred due to the act of a third party. Thus, if a person who has caused an insured accident falls under the "insured," not a "third party" as prescribed by the above law, the insurer cannot exercise the right of subrogation against the insured person (see, e.g., Supreme Court Decisions 93Da1770, Jun. 29, 1993; 2000Da33089, Jun. 1, 2001).

In addition, in the case of non-life insurance, only the type of the subject matter and risk of the insurance are determined, and where the insured and the insurable interests are unclear, whether the insurance contract is for the policyholder itself or for another person shall be determined by taking into account all the circumstances such as the content of the insurance contract and the terms and conditions which the parties serve as the subject matter of the insurance contract, the developments and process of the conclusion of the insurance contract by the parties, and the practice of the insurance company, etc. (see Supreme Court Decisions 2002Da33496, Jan. 24, 2003; 2009Da56603, 56610, Dec. 10, 2009).

According to the reasoning of the judgment below and evidence duly adopted and examined: ① the Plaintiff entered into a comprehensive property insurance contract (hereinafter “instant insurance contract”) with the Central Distribution Complex Management Committee on January 16, 2008 (hereinafter “Central Distribution Complex”) on eight buildings located in Guro-gu (hereinafter “Central Sales Complex”); ② the Defendant owns the Central 1st underground floor B26-7 (hereinafter “Defendant’s exclusive ownership”) on behalf of the owner of the sectional owner, and the Defendant entered the terms of the “Act No. 26-8 through B26-12” (hereinafter “Defendant’s exclusive ownership”) on behalf of the owner of the above sectional owner; ③ the Defendant is liable for damages incurred by the owner of the building under the Act on the Management of the Building, which caused the damage caused by the fire No. 1’s destruction or damage caused by the fire No. 2; and ③ the Plaintiff’s damage caused by the fire No. 1’s destruction or damage caused by the fire No. 3000, Jul. 27, 2008.

In light of the above facts in light of the legal principles as seen earlier, the insured of the insurance contract of this case is one of the sectional owners at the central price, and the insured benefit is one of the owner's interests in possession of each section for exclusive use and section for common use at the central price. Therefore, even if it is acknowledged that the Defendant paid the insurance premium equivalent to the Defendant's leased portion as part of the management fee, barring special circumstances such as the agreement that the Defendant exempted the Defendant from liability for damages due to the occurrence of a fire accident, etc. in each lease agreement on the leased portion, the payment of the insurance premium alone does not constitute the insured of the part concerning the Defendant's leased portion of the insurance contract of this case, and the same is more true with respect to the share of the sectional owner other than the Defendant

Nevertheless, the court below determined that the defendant is the insured of the insurance contract of this case as one of the sectional owners in the central shopping district and one of the lessees of "the leased part of the defendant," which affected the conclusion of the judgment by misapprehending the legal principles as to the insured of non-life insurance.

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-young (Presiding Justice)