Where the insured has a claim against a third party, whether or not the insurer who has paid the insurance money should prove the cause attributable to the third party in order to exercise the right by subrogation.

If a loss occurs due to an insured incident and the insured has a claim for damages to a third party, the insurer who has paid the insurance money naturally acquires the claim for the damages in accordance with the provisions of law without proving that there is a cause attributable to the third party. Therefore, the "act of the third party" in Article 682 of the Commercial Code refers to "act causing damage to the insurance profit" and it does not constitute only intentional or negligent act.

Article 682 of the Commercial Act, Article 261 of the Civil Procedure Act

Supreme Court Decision 89Meu21965 delivered on February 9, 1990 (Gong1990, 726) Supreme Court Decision 92Da4871 delivered on January 26, 1993 (Gong1993Sang, 849) Supreme Court Decision 93Da32958 delivered on January 11, 1994 (Gong1994Sang, 6955)

Korea Fire Marine Insurance Co., Ltd. (Law Firm Han-dong Law Office, Attorneys O Chang-kum et al., Counsel for defendant

Defendant (Attorney Kim Byung-chul, Counsel for defendant-appellant)

Daegu High Court Decision 94Na4562 delivered on June 21, 1995

The judgment below is reversed and the case is remanded to the Daegu High Court.

We examine the grounds of appeal.

The court below rejected the defendant's assertion that the plaintiff paid damages to the non-party 1 as a good manager of the fire insurance contract on the ground that the non-party 1's claim against the non-party 1 was insufficient, since the fire occurred in the above building on June 22, 1992 and part of the 1,200,000 won, and the non-party 1 caused damages to the non-party 1 in total due to the non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 31's non-party 1's non-party 1's non-party 1's claim for indemnity.

Article 682 of the Commercial Act provides that "if a loss has occurred due to a third party's act, an insurer who has paid the insured amount shall acquire the rights of a policyholder or the insured with respect to such third party within the limits of the amount paid." Thus, the Commercial Act provides that the insured's subrogation provision against a third party is to hold and exercise a claim against the third party even after the insured was paid the insured amount from the insurer, which would result in the insured's benefit going beyond the compensation for the loss, and it would be contrary to the principle of the non-life insurance system, and it would also be unreasonable that the third party who is a liable for the compensation would be exempted from the liability due to the receipt of the insurance amount of the insured, thereby intending to remove it and vest the insurer's benefit (see, e.g., Supreme Court Decisions 87Meu1669, Apr. 25, 198; 89Meu21965, Feb. 9, 199).

Therefore, if the insured causes damage due to an insured incident and acquires a claim for damages to a third party, the insurer who has paid the insurance money naturally acquires the claim for damages pursuant to the provisions of law without proving that there is a cause attributable to the third party. Therefore, the "act of the third party" under Article 682 of the Commercial Code refers to "act causing damage to the insured interest" and it shall be deemed that only intentional or negligent act does not correspond to it.

Nevertheless, the court below rejected the plaintiff's assertion on subrogation of the insurer that the plaintiff, who is the insurer, must prove that the fire in this case occurred due to the reason attributable to the defendant, satisfies the requirements for subrogation of the insurer. The court below erred by misapprehending the legal principles on subrogation of the insurer, and it is obvious that such illegality affected the judgment, and therefore, there is a reason to point this out.

Therefore, the judgment of the court below is reversed and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Jeong Jong-ho (Presiding Justice)