A Study on employer’s scope of the right of indemnity under the insurance policy of fidelity guarantee: Focused on the judgment of the Supreme Court 2019DA210697 sentenced on December 29, 2022

HanDeok Jun
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Abstract

The employer who compensated for damages suffered by a third party due to an employee's illegal activities in an insurance policy of fidelity guarantee can use the right to indemnity against the employee for the remaining damages without being transferred to the insurance money received from the insurance company. However, the criteria for setting the scope of the specific amount of money are different from the original trial and the Supreme Court. The Supreme Court presupposes that the plaintiff's damages are the total damages paid to the third party due to the defendant's fault in determining the amount of indemnity for the policyholder of the insured. However, the Supreme Court overlooked that liability insurance is a contract that guarantees legal damages on the insured. In addition, in order to calculate the specific insurance premium in the event of an insurance accident, the liability limit of the fidelity guarantor must be determined after confirming the scope of legal liability for damages of the policyholder. This judgment of the Supreme Court does not correspond to the legal principle of liability for employer's liability under the civil law. In view of the fact that the plaintiff, who is the insured, enjoys unfair excess profits, it also violates the principle of actual expense compensation in the non-life insurance system. Therefore, the judgement of the court of first instance is right which judged the plaintiff's indemnity amount deducting the insurance money already paid from the legal damages.
保真保证保单下雇主受偿权范围研究——以2022年12月29日最高法院2019DA210697号判决为例
雇主在保真保证保单中赔偿了因雇员违法行为给第三方造成的损失的,可以对雇员行使剩余损失赔偿的权利,而无需转入从保险公司收到的保险金。但是,具体金额范围的确定标准与原审和大法院不同。最高法院假定原告的损害赔偿是由于被告在确定被保险人的保单持有人的赔偿金额方面的过失而支付给第三方的全部损害赔偿。但是,大法院忽略了责任保险是一种保证被保险人遭受法律损害的合同。此外,为了计算发生保险事故时的具体保险费,必须在确定投保人的损害赔偿法律责任范围后确定保真担保人的责任限额。最高法院的这一判决不符合民法中关于雇主责任的法律原则。鉴于原告作为被保险人享有不公平的超额利润,这也违反了非寿险制度中的实际费用补偿原则。因此,一审法院的判决是正确的,即从法定损害赔偿金中扣除已经支付的保险金,判定原告的赔偿金额。
本文章由计算机程序翻译,如有差异,请以英文原文为准。
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