If the insurer compensates the victim according to the insurance contract with one of the joint tortfeasor, whether the insurer shall exercise the right to indemnity against the other joint tortfeasor (affirmative)

If a joint tortfeasor who is jointly and severally liable for damages sustained by the victim agreed one half of each joint tortfeasor's liability for damages, and the insurance company pays the total amount of damages sustained by the victim in subrogation of one of the joint tortfeasor's liability in accordance with an insurance contract with one of the above joint tortfeasor and thereby the joint tortfeasor obtains joint immunity, it shall be deemed that the joint tortfeasor has obtained payment of the amount of damages incurred by the joint tortfeasor's liability and other joint tort liability at his own expense. Therefore, the joint tortfeasor can exercise the right to indemnity against the portion of the other joint

Articles 760(1) and 425 of the Civil Act, Article 682 of the Commercial Act

Supreme Court Decision 87Meu1012 Decided April 27, 1988

[Defendant-Appellee] Korea Automobile Insurance Co., Ltd. and three others

Samsung Heavy Industries Co., Ltd., Counsel for the defendant-appellant

Seoul High Court Decision 88Na2870 delivered on February 28, 1989

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

We examine the grounds of appeal.

1. According to the reasoning of the judgment below, since the accident in this case occurred due to the negligence in the operation of the air of the non-party 1, the court below held that the non-party 1 and the defendant jointly and severally liable for the damages suffered by the non-party 2, etc. due to the accident of this case as the non-party 1's user and the above non-party 1's operator of the above air period, the plaintiff, who was the insurer who entered into a comprehensive automobile insurance contract with the above non-party 2 on behalf of the above non-party 2, was exempted from liability for the defendant. Since the defendant and the non-party company agreed to pay the damages to the non-party 2, the above non-party company acquired the right to indemnity against the defendant within the limit of its share of liability for damages, the above non-party company acquired the right to indemnity against the defendant on behalf of the above non-party company. Thus, in order to exercise the right to indemnity against the defendant, the plaintiff's assertion that the non-party company was not entitled to compensation for the above non-party 2's claim.

2. However, as determined by the court below, if the defendant and the non-party company are jointly and severally liable for damages suffered by the non-party 2 due to a nuclear accident, and as asserted by the plaintiff, the defendant and the non-party company agreed to pay one half of the share of the above liability for damages, and the plaintiff received joint immunity by paying the total amount of damages suffered by the non-party 2 on behalf of the non-party company on behalf of the non-party company as the insurer at the time of its purchase, it shall be deemed that the non-party company obtained repayment and other joint exemption from liability, and the non-party company may exercise the right to indemnity against the defendant's share

The court below's decision that the non-party company cannot acquire the right to indemnity against the defendant from the opposite position is erroneous in the misapprehension of legal principles as to the right to indemnity.

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 Song Man-man (Presiding Justice)