[2] Whether the insurer is exempted in a case where a beneficiary who subscribed to an automobile comprehensive insurance company as a named insured person has transferred the ownership of a motor vehicle to another subsidiary company but fails to take the procedure of insurance succession (affirmative)

[2] In a case where a local owner owner's moving a vehicle into a company and entered into an insurance contract with an insurance company as a named insured person, and then replaced the company and completed the registration of transfer of the ownership of a vehicle to a replaced branch, even if the local owner still operated and managed the vehicle as a local owner even after the registration of transfer, and the local owner actually caused an accident, the local owner's moving-in company is exempted from liability for the accident that occurred after the transfer of the vehicle, even if the local owner still operated and managed the vehicle as the local owner after the registration of transfer, the local owner's moving-in company as a named insured person already lost the right to operate or control operation of the vehicle and newly acquired the operation control by the replaced local owner, which is likely to cause a change in the foundation of the insurance contract, such as a change in the predicted risk rate, etc.

1. When the insured transfers an automobile during the insurance period, the rights and obligations of the policyholder and the insured arising from the insurance contract shall not be succeeded to the transferee of the rights and obligations arising from the insurance contract, but if the insured or the transferee agrees in writing to the effect that he shall succeed to the rights and obligations arising from the insurance contract and obtains approval from the company, and Article 42 of the General Automobile Insurance Clause of this case, which provides that Article 63 of the Commercial Act shall apply to the transferee of the company, is against the prohibition of disadvantageous change to the policyholder, etc. under Article 63 of the Commercial Act, or is against the good faith principle under Article 6 of the Regulation of Standardized Contracts Act, or any provision which imposes unreasonably strict restriction on the forms or requirements of customer's expression of intent under Article 12 subparagraph 2 of the same Act, cannot be deemed null and void (see Supreme Court Decision 92Da8552 delivered on April 13, 1993).

2. The court below held that the plaintiff's assertion that the plaintiff's transfer of the vehicle of this case from the non-party Dongbu General Co., Ltd. (hereinafter the non-party company, the non-party company), notified the defendant of this fact, and urged the non-party company to implement the succession procedure of the automobile insurance contract of this case which was concluded between the non-party company and the defendant, but the defendant refused the succession on the ground that it is a business vehicle without specifically explaining the succession procedure of the insurance contract, and there is no evidence to prove otherwise without believing that it received the installment premium under the above insurance contract even though it was aware of the transfer and acquisition of the above vehicle, or that there is no other evidence to prove that the defendant agreed to the succession of the insurance contract from the non-party company to the plaintiff, or that the contract of this case which was concluded between the non-party company and the defendant was changed to the plaintiff. In light of the records, the above fact finding and decision of the court below is correct and there is no error in the misapprehension of legal principles as to misunderstanding of facts due to the rules of evidence, succession

The Supreme Court Decision 94Da17970 delivered on October 14, 1994 cited as the main issue is not appropriate to be invoked in this case, with the different issues. All the arguments are without merit.

3. The case where the defendant, the insurer of the automobile, is exempted from the liability under Article 42 of the above General Automobile Insurance Clause refers to the case where the transferor loses the operation control over the automobile in question and acquires the de facto operation control by the transferee. Therefore, if the registered insured changes only the registered name and actually possesses the automobile and directly operates the automobile in question while controlling its operation, it is reasonable to interpret the above provision as not to apply (see Supreme Court Decision 93Da1480 delivered on June 29, 1993).

However, if the non-party entered the non-party company as the non-party company and entered the insurance contract between the non-party company as the non-party company and the non-party company as the named insured, and then re-entered the non-party company as the plaintiff and completed the registration of the transfer of the vehicle under the plaintiff's name, the non-party still operated and managed the above vehicle as the non-party owner after the above transfer transfer registration, and even if the non-party caused the accident in this case, the non-party company as the registered insured has already lost the right to operate and control the vehicle of this case, and it is likely that the plaintiff will newly obtain the operation control of the vehicle of this case and change the insurance contract basis, such as the change in the predicted risk rate, etc.

In the end, the judgment of the court below to the same purport is correct, and it cannot be said that there is an error by misapprehending the legal principles on the insurer exemption, such as the theory of lawsuit.

4. Accordingly, the appeal shall be dismissed and all costs of appeal shall be assessed against the losing plaintiff. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Jong-sik (Presiding Justice)