Samsung Fire and Marine Insurance Co., Ltd. (Law Firm Lee & Lee LLC, Attorney Jeong-ho, Counsel for defendant-appellant)

Case non-life insurance Co., Ltd. (Law Firm Cheongju, Attorneys Don-dong, Counsel for defendant-appellant)

March 3, 2016

Seoul Central District Court Decision 2014Da520933 Decided April 27, 2015

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

The defendant shall pay to the plaintiff 3,418,40 won and 2,715,960 won among them from December 11, 2009, 9,693,627 won from December 16, 2010, 6,976,043 won from December 8, 2011, 7,537,10 won from December 21, 201, 200 to 6,495,670 won from January 10, 2014 until the delivery date of a duplicate of the complaint of this case, and 20% per annum from the day following the day of complete payment to the day of complete payment.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Facts of recognition;

1. Of the grounds for the court’s explanation concerning this part, the part concerning the facts of recognition is identical to that set forth in Paragraph 1 of Article 420 of the Civil Procedure Act, except for adding the following to Section 3(c) of the judgment of the court of first instance, and adding to Section 3(8) (based on recognition), the part concerning the facts of recognition is identical to that set forth in the main sentence of Article 420 of the Civil Procedure Act.

D. On August 22, 2008, the Defendant paid the Plaintiff the insurance premium of KRW 19,228,179, the part of the Defendant’s insurance premium of KRW 58,267,210 paid to Nonparty 1 up to August 22, 2008, and subsequently brought a lawsuit against the Plaintiff seeking the return of unjust enrichment of KRW 2009Gabu8965, Seoul Central District Court (Seoul Central District Court 2009Na17805), but the lower court (Seoul Central District Court 2009Na17805), which was two years after the date of the instant accident, ordered the Plaintiff to pay the amount of unjust enrichment of KRW 10,379,976, excluding KRW 10,848,194, and delay damages therefrom (hereinafter “former lawsuit”).

2. The assertion and judgment

A. Determination on the cause of the claim

Article 672(1) of the Commercial Act concerning non-life insurance applies mutatis mutandis to cases where several non-life insurance agreements with respect to one accident are concluded and the total amount of the insured amount exceeds the amount of the insured amount, and the insurer is jointly and severally liable within the scope of each insured amount, and in such cases, each insurer is liable for compensation according to the ratio of each insured amount (see Supreme Court Decision 2005Da35516, Nov. 10, 2006, etc.).

The insurance contracts of this case Nos. 1, 2, and 3 are double insurance applicable mutatis mutandis under Article 672(1) of the Commercial Act, and thus the plaintiff and the defendant jointly liable within the limit of each insurance amount, and each of the above insurance contracts is identical with the same insurance payment rate. Thus, the defendant is obligated to pay to the plaintiff KRW 3,418,400, which corresponds to 1/3 of the insurance amount paid by the plaintiff to the non-party 1 from July 27, 2009 to January 9, 2014, and damages for delay after each payment date, barring special circumstances.

B. Judgment on the defendant's assertion

1) The assertion

The defendant's lawsuit of this case is against the res judicata in relation to the judgment in the previous suit, and the defendant's claim for insurance payment against the defendant only after the plaintiff was made on April 22, 2008. The defendant's claim for insurance payment against the non-party 1 was completed on November 13, 2006, which was 2 years after the occurrence of the accident of this case, and the expiration of the extinctive prescription against the defendant's claim for insurance payment against the non-party 1. Since the above insurance payment that the plaintiff paid after the expiration of the extinctive prescription has an absolute effect on the completion of the extinctive prescription against the joint liability, the above insurance payment that the plaintiff has no joint liability and has no liability for reimbursement. The extinctive prescription against the defendant's marine driver because the plaintiff violated the obligation to notify the defendant of the occurrence of the accident of this case, the plaintiff's claim for reimbursement against the defendant's marine driver's damage is set off against the equivalent amount of the above damage claim and the indemnity payment claim against the defendant.

2) Determination

If a judgment on the subject matter of a prior suit becomes a prior question in the subsequent suit or the subject matter of a prior suit is inconsistent with the legal relationship that became final and conclusive in the prior suit, res judicata of the judgment in the prior suit would be excessive in the subsequent suit, and thus, it does not allow any assertion different from the judgment in the prior suit. However, res judicata of a final and conclusive judgment does not affect only the conclusion of the judgment on the existence of a legal relationship alleged in the subject matter of a prior suit and does not affect the existence of a legal relationship that is the premise. Therefore, the legal relationship established in the prior suit refers to a legal relationship that has res judicata effect of a final and conclusive judgment (see, e.g., Supreme Court Decision 2008Da36022, Mar. 12, 2009). The legal relationship alleged in the subject matter of a prior suit is the existence of a claim for return of unjust enrichment and the effect of the extinctive prescription on the joint and several obligors jointly and severally liable, and it does not conflict with the judgment in the prior suit.

In double insurance, the right to indemnity under Article 672 of the Commercial Act against each insurer against the other insurer is a separate right different from the cause and nature of the insured’s insurance claim against the other insurer. In the case of double insurance, there is no close subjective co-ownership relationship between each insurer, and in light of the fact that it is more strongly protected for the insured to claim that the quasi-joint and several liability is quasi-joint and several liability under Article 672(1) of the Commercial Act. Therefore, even if the extinctive prescription of the Defendant’s insurance claim against Nonparty 1 is completed, it is reasonable to deem that the joint and several liability under Article 672(1) of the Commercial Act is quasi-joint and several liability. Therefore, even if the extinctive prescription of

Article 672(2) of the Commercial Act provides only the insurer's duty to notify the insurer of the insurance. Since the insurer cannot easily ascertain whether double insurance is duplicate insurance, the insurer cannot be held liable to notify the insurer of the occurrence of insurance accidents, double insurance, etc. Therefore, the Defendant's defenses premised on the Plaintiff's above duty to notify are without merit.

3. Conclusion

Therefore, the plaintiff's claim is justified, and the judgment of the court of first instance is just, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.

For the chief of the Si/Gun/Gu office of the judge