[1] In a case where an accident caused by a third party's act causes damage to the insured to both the subject matter of insurance and the property other than the subject matter of insurance, and the insured receives insurance proceeds with respect to the subject matter, the method of determining the amount of damages that the insured

[2] The case holding that in a case where Gap concluded an insurance contract with Eul insurance company as the subject matter of insurance, and then caused damage not only to Gap's stores but also to Gap's goods in a temporary warehouse due to fire that occurred during the roof reinforcement work of the building owned by Byung, and Gap received insurance money from Eul company as to the total amount of damage caused by the subject matter of insurance, and then filed a claim for damages against Byung, the case holding that Eul cannot claim damages against Byung for the damage caused by the subject matter of insurance, and that Eul can claim damages against Byung as much as Byung's damage amount out of the amount of damage caused by the non-subject matter of insurance

[1] In a case where a third party, at the same time, is liable for damages arising from an accident of an accident of an accident of a non-life insurance, and the insured files a claim for damages against him/her, the insured may claim against the third party for the performance of his/her liability to compensate for the remaining damages, regardless of the amount of insurance

The provisions of Article 682 of the Commercial Act concerning subrogation of an insurer provide that the insured holds a claim against a third party even after he/she has been paid the insured amount from an insurer to a third party, which would result in benefit going against the principle of the non-life insurance system, and it is unreasonable for a third party who is a liable for compensation to be exempted from liability due to the receipt of insurance proceeds of the insured. Therefore, it is intended to remove and vest in profits for the insurer by removing it. However, in a case where one accident causes a lump sum loss to the subject matter of insurance and property that is not the subject matter of insurance, subrogation of an insurer under Article 682 of the Commercial Act, which is premised on legal relations in accordance with the insurance contract, cannot be applied to the damage incurred to the subject matter of insurance and property that is not the subject matter of insurance. Therefore, where the insured has received insurance proceeds to the insured due to an accident committed by a third party, if the insured claims for damages due to the subject matter of insurance, it shall be divided into damages to the subject matter of insurance and property that is not the subject matter of insurance.

[2] In a case where Gap concluded an insurance contract with Eul insurance company as the subject matter of insurance, and then caused damage to Gap's goods and goods in the temporary warehouse due to fire that occurred during the roof reinforcement of the building owned by Byung, and Gap received insurance money from Eul company as to the total amount of damage caused by the subject matter of insurance, the case holding that the court below erred by misapprehending legal principles that Gap can claim the total amount of damage liability against Byung because Eul did not distinguish the subject matter of insurance, while Eul cannot claim for the above damage since the insurance money was fully paid for the damage inflicted on Eul's goods within the store, which is the subject matter of insurance, while Eul can claim for the amount of damage corresponding to Byung's damage liability among the amount of damage caused by the non-subject matter of insurance, although Eul could not claim for the above damage, but it did not claim for the distinction of the subject matter of insurance, and since the remaining amount of damage exceeds Byung's total amount of damage liability.

[1] Article 682(1) of the Commercial Act; Articles 393 and 763 of the Civil Act / [2] Article 682(1) of the Commercial Act; Articles 393, 758, and 763 of the Civil Act

[1] Supreme Court en banc Decision 89Meu21965 Decided February 9, 1990 (Gong1990, 726), Supreme Court Decision 95Da33092 Decided November 14, 1995 (Gong1996Sang, 23), Supreme Court en banc Decision 2014Da46211 Decided January 22, 2015 (Gong2015Sang, 237), Supreme Court Decision 2019Da240629 Decided November 15, 2019

Plaintiff (Law Firm LLC, Attorneys Jeon Jae-mo, Counsel for the plaintiff-appellant)

Defendant (Law Firm Han River, Attorneys Kang Han-soo et al., Counsel for the defendant-appellant)

Seoul Central District Court Decision 2017Na22017 Decided January 24, 2018

The part of the judgment below against the defendant is reversed, and that part of the case is remanded to the Seoul Central District Court.

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

1. As to the grounds of appeal Nos. 1 and 2

For reasons indicated in its holding, the lower court determined that the Defendant was liable for compensating the Plaintiff for damages caused by the instant fire, on the ground that the construction or preservation defect of the Defendant’s building was one of the joint causes of the instant fire.

Examining the reasoning of the lower judgment in light of the record, the lower court did not err in its judgment by misapprehending the legal doctrine on res judicata, good faith, and offset, contrary to what is alleged in the grounds of appeal.

2. Regarding ground of appeal No. 4

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 to compensate for damages against the third party, the insured may claim against the third party for the performance of his/her liability to compensate for the remaining damages without compensating the insurance proceeds received from the insurer (see Supreme Court en banc Decision 2014Da46211, Jan. 22, 2015, etc.).

The provisions of Article 682 of the Commercial Act concerning subrogation of an insurer provide that an insured person shall hold a claim against a third party even after he/she has been paid the insured amount from an insurer to a third party, which would result in benefit going against the principle of non-life insurance system, and it is unreasonable for a third party who is a liable for compensation to be exempted from liability due to the receipt of insurance proceeds of the insured, so that it would be unreasonable to remove such benefit to vest in the insurer (see, e.g., Supreme Court Decisions 89Meu21965, Feb. 9, 190; 95Da33092, Nov. 14, 1995; 95Da3092, Nov. 14, 1995). However, in a case where an insured event causes a lump sum loss to the subject matter of insurance and property other than the subject matter of insurance, subrogation under Article 682 of the Commercial Act, premised on legal relations arising from the insurance contract, and where the insured is not a subject matter of insurance, it cannot be applied to the insured’s damages.

B. Review of the reasoning of the lower judgment and the record reveals the following facts.

1) The Plaintiff concluded an insurance contract with the Dong Fire & Marine Insurance Co., Ltd. (former D non-life insurance company) and the Plaintiff’s store as the subject matter of insurance.

2) Since then, a fire that occurred during the roof reinforcement construction of a building owned by the Defendant destroyed not only the goods within the Plaintiff’s store but also the goods within the Plaintiff’s temporary warehouse. The Plaintiff suffered damages of KRW 189,251,564, the value of the goods within the Plaintiff’s store, which is the subject matter of insurance, as well as damages of the goods within the Plaintiff’s temporary warehouse, which is not the subject matter of insurance.

3) The Plaintiff was paid KRW 189,251,564 as insurance money only for the damages incurred from the subject matter insured by Dong Fire & Marine Insurance Co., Ltd.

C. We examine the above facts in light of the legal principles as seen earlier.

The instant fire caused damage not only to the goods within the Plaintiff store, which are the subject matter of insurance, but also to the goods within the Plaintiff temporary warehouse, which are not the subject matter of insurance. Since the Plaintiff was fully paid insurance money for the damage incurred from the goods within the Plaintiff store, which is the subject matter of insurance, the Defendant is not entitled to claim compensation for the said damage. On the other hand, the Plaintiff may claim compensation to the Defendant as much as the amount of damages incurred from the property,

Nevertheless, on the grounds indicated in its reasoning, the lower court did not distinguish whether the subject matter was covered, and determined that the Plaintiff may claim for the total amount of damages to the Defendant on the ground that the amount of damages remaining after the Plaintiff’s total amount of damages exceeds the Defendant’s total amount of damages liability. In so determining, the lower court erred by misapprehending the legal doctrine on the amount of damages that the insured may claim against a third party, by misapprehending the legal doctrine on “where the insured receives insurance money with respect to the subject matter,” as a result of an accident caused by a third party’s act, all of the property that is not the subject matter of insurance

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the part against the defendant among the judgment below is reversed, and the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench

Justices Lee Ki-taik (Presiding Justice)