Subrogation under the fault-ratio agreement before consultation

1. 01Question

   May the Mutual Agreement on the Deliberation of Disputes over Fault Ratios in Automobile Accidents and its Rules serve as the standard for deciding a subrogation suit between two member insurers, and is a fault-ratio consultation under Article 41 of the Rules a precondition to a subrogation claim under Article 42?

2. 02Holding

   Yes to the first point, no to the second. The Mutual Agreement and its Rules are contracts among the member insurers, including the plaintiff and the defendant, so as long as their content does not violate a mandatory provision the parties must follow them. Article 41 of the Rules governs the joint payment made after the insurers have consulted on the fault ratio, while Article 42 governs the first payer's subrogation against the second payer where no such consultation took place, so the consultation is not a precondition to the claim and the agreement and the rules may serve as the standard for judgment in this suit; the provisions referred to were Article 105 of the Civil Code and Article 682(1) of the Commercial Act.

   Summary of the holding, verbatim

   위 상호협정 및 시행규약이 당사자들 사이의 소에서 판단의 준거가 될 수 있고, 위 시행규약에 따라 당사자들 사이에 과실비율 협의가 이루어지는 것이 위 시행규약에 따른 구상금 청구의 선행조건이라고 보기 어렵다고 본 원심판단을 수긍한 사례.

   Unofficial English translation

   A case where the court below's determination that the above Mutual Agreement and Implementation Rules may serve as the basis for adjudication in the action between the parties, and that it is difficult to regard a negotiation between the parties over the negligence ratio conducted under the above Implementation Rules as a prerequisite for a claim for reimbursement under the above Implementation Rules, was affirmed.

3. 03Disposition

   Dismissed Stated in the decision

   상고를 기각한다. 상고비용은 피고가 부담한다.

   Unofficial English translation

   The appeal is dismissed. The appeal costs shall be borne by the defendant.

4. 04Form of the test

   Existing test applied Read from the decision

   위 상호협정 및 시행규약은 갑 회사와 을 회사를 비롯한 협정회사들 사이의 계약이므로 그 내용이 강행규정에 반하지 않는 한 계약당사자인 갑 회사와 을 회사는 이에 따라야 하는 점

   Unofficial English translation

   The above Mutual Agreement and Implementation Rules are a contract among the agreement member companies including company A and company B, and therefore, unless their content contravenes mandatory provisions, company A and company B, as parties to the contract, must abide by them.

5. 05Factors

   • 그 내용이 강행규정에 반하지 않는 한 계약당사자인 갑 회사와 을 회사는 이에 따라야 하는 점
   • 소송절차에서 그 적용을 배제하는 내용은 찾아볼 수 없고
   • 구상금청구소송 업무처리 기준에 관하여도 정하고 있는 등 소송절차에서의 적용도 예정한 것으로 보이는 점
   • ‘공동 보상’과 그러한 과실비율 협의 없이 선처리사(우선 보상하는 협정회사)가 먼저 보상한 후 후처리사(선처리사에 구상금을 지급할 책임이 있는 협정회사)를 상대로 구상을 구하거나 그 과정에서 분쟁이 발생한 경우의 ‘우선 보상’을 구별하여 규정하고 있는바
   • 위 시행규약을 당사자들 사이에 과실비율 협의가 이루어진 경우에만 적용된다고 해석하는 것은 선처리사의 구상에 관한 권리를 침해하는 것으로서 부당하고

   Unofficial English translation

   • the fact that, unless their content contravenes mandatory provisions, company A and company B, as parties to the contract, must abide by them

   • there is no provision to be found excluding its application in litigation proceedings,

   • the fact that it also provides for standards on the handling of reimbursement claim litigation and the like, and thus appears to contemplate its application in litigation proceedings,

   • the fact that it separately stipulates "joint compensation" and "prior compensation" in cases where, without such negotiation over the negligence ratio, the prior-paying company (the agreement member company that compensates first) compensates first and then seeks reimbursement from the subsequent-paying company (the agreement member company responsible for paying reimbursement to the prior-paying company) or a dispute arises in that process, and

   • that interpreting the above Implementation Rules as applying only where a negotiation over the negligence ratio has been conducted between the parties would infringe upon the prior-paying company's right to reimbursement and is therefore unjust,

6. 06Relation to precedent

   Follows earlier decisions Stated in the decision

   대법원 2022. 4. 14. 선고 2021다275611 판결(공2022상, 906)

   Unofficial English translation

   Supreme Court Decision 2021Da275611 decided April 14, 2022 (Gong 2022 Sang, 906)

   Decisions referred to

   [1] 대법원 2022. 4. 14. 선고 2021다275611 판결(공2022상, 906)

7. 07Burden of proof

   Not addressed Not in the decision

8. 08Open question and revisit condition

   After the victim's treatment ends, may the first payer claim again the portion of the treatment expenses that exceeded the amounts already subrogated in three-month units under Article 42(2) of the Rules?

   An amendment to the Mutual Agreement or its Rules, in particular Articles 41, 42 and 43, would call for this entry to be read again, as would a later decision holding that the agreement may not serve as the standard for judgment in litigation. A record showing that a fault-ratio consultation had already taken place, or that the content of the agreement or the rules conflicts with a mandatory provision, would put a different provision in play.

Read 2026-10-24 · Cross-read 2026-10-24. All quotes matched against the official text. The Chinese-character placeholders the court used for anonymised parties are given in their Korean readings, and parenthetical Chinese-character glosses are omitted.

Every entry is published only after all quotes have been matched character by character against the official text, and audited by an independent second reading from a different model family across all eight axes. Both agreed axes and text-grounded interpretive divergences are recorded openly. The ledger is a research record, not an assessment of the court or advice on any matter.