[1] In a case where there is no negligence on an insured incident against the insured, whether subrogation by the insurer against a third party as stipulated in Article 682 of the Commercial Code is recognized (negative)

[2] The case holding that the insurer cannot be subrogated where the insurer paid the insurance money to the victim without any negligence on the part of the driver of the insured vehicle

[1] In order to recognize subrogation by an insurer against a third party as stipulated in Article 682 of the Commercial Act, the insurer should be liable for paying insurance proceeds to the insured. Thus, if the insurer is not exempted from insurance terms and conditions or is not negligent in paying insurance proceeds to the insured, and if the insurer is not liable for paying insurance proceeds to the insured, the insurer shall not be held liable

[2] In a case where the insurer of the vehicle B, who received the vehicle B from the vehicle B and caused damage to the vehicle B due to its shock, paid the automobile B with the automobile indemnity insurance money, the case holding that if the driver of the vehicle B is not deemed to have any negligence in relation to the above accident, the insurer is not liable for paying the insurance money to the insured, and thus the insurer cannot make a subrogation

[1] Article 682 of the Commercial Code / [2] Article 682 of the Commercial Code

[1] Supreme Court Decision 94Da200 delivered on April 12, 1994 (Gong1994Sang, 143)

Plaintiff (Attorney Hong-ho et al., Counsel for the plaintiff-appellant)

Defendant (Attorney Park Sung-won et al., Counsel for the defendant-appellant)

Incheon District Court Decision 2008Na19119 Decided May 26, 2009

Of the part of the lower judgment against the Defendant, the part of KRW 1,66,800, and 1,000,000, and 1,000,000, of the ○○○ Car Repair Cost, are reversed, and that part of the case is remanded to the Panel Division of the Incheon District Court. The remaining appeals are dismissed.

We examine the grounds of appeal.

1. Regarding ground of appeal No. 1

In order to recognize subrogation of an insurer against a third party under Article 682 of the Commercial Act, the insurer must be liable for the payment of insurance proceeds to the insured. Thus, if the insurer is exempted from liability in accordance with the insurance policy (see Supreme Court Decision 94Da200, Apr. 12, 1994) or if the insured is not responsible for the payment of insurance proceeds to the insured because the insurer was not negligent in paying the insurance proceeds, the insurer cannot be subrogated.

According to the reasoning of the judgment below, the non-party 1, who is the driver of the defendant vehicle, obtained the plaintiff vehicle while driving the vehicle as stated in its reasoning and caused the conflict between the plaintiff vehicle and the non-party 2's husium, and damaged the non-party 2's husium, and as stated in its reasoning, the court below rejected the defendant's liability to compensate the non-party 2 for damages caused by the plaintiff's non-party 1,830,00 won as compensation cost for the plaintiff's husium, which is the value of the non-party 3's automobile scheduled to scrap, and the non-party 4 paid insurance money to the non-party 1,66,80 won in total as compensation insurance money for the non-party 1,66,80 won to the non-party 2, who is the owner of the non-party 4's automobile, for the reason that the non-party 5, who is the driver of the plaintiff vehicle, violated the duty of indemnity clause and the non-party 2's liability.

However, in light of the above legal principles, if the accident of this case was caused by Nonparty 1’s negligence, who is the driver of the Defendant vehicle, and if no negligence is found with Nonparty 5, who is the driver of the Plaintiff vehicle, the above Nonparty 5 did not have any liability to compensate for the above ○○ Car and the hushes damage part, so the Plaintiff is not liable for paying insurance money to the insured. Thus, even if the Plaintiff paid insurance money to this part, the insured’s right cannot be subrogated to the Defendant.

In addition, according to the automobile insurance standard terms and conditions shown in the record, an insurance company shall compensate the insured for the loss suffered by the insured from the insured's death or injury caused by an insured automobile accident that occurred during the possession, use, or management of the insured automobile, or from the removal or damage of other property. In accordance with the above provisions, the insurer shall not be liable to compensate for the loss unless the insured is legally liable to compensate for the loss. Thus, it is nothing more likely that the insured is legally liable to compensate for the loss, and the insurer shall not be deemed to have the right to subrogate the insured's right if the insurer has paid the insurance money to the victims without any apparent ratio and negligence between the Plaintiff and the Defendant.

Therefore, the judgment of the court below that recognized the insurer's subrogation against the above ○○ car and hulle damage shall be erroneous in the misapprehension of legal principles as to subrogation by the insurer, which affected the conclusion of the judgment. The ground of appeal pointing this out is with merit.

2. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the part against the Defendant of the lower judgment regarding KRW 1,66,800 of the repair cost for ○○ Car and KRW 1,00,000 of the maintenance cost for ○○ Car, and the 1,000,000 of the maintenance cost for Dud rice, are reversed, and this part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The remaining grounds of appeal are dismissed without any entry in the grounds of appeal,

Justices Shin Young-chul (Presiding Justice)