Attorney Jeong Chang-hwan, Counsel for the defendant-appellant

Law Firm Jeong-man, Counsel for the plaintiff-appellant

Attorney Yellow-hee, Jin-hun, Kim Jong-hee

2. The costs of lawsuit shall be borne by the Plaintiff.

The judgment of the court below that the defendant shall pay to the plaintiff 31,960,645 won with 5% interest per annum from March 28, 2008 to the date of this decision and 20% interest per annum from the next day to the date of full payment.

가. 원고는 자동차보험업 등 각종 보험사업을 영위하는 보험사업자로서 2004. 4. 27. A와 사이에 그 소유인 부산 XXXX호 그레이스 승합차(이하 '이 사건 승합차'라고 한다)에 관하여 보험기간을 2004. 4. 27.부터 2005. 4. 27.까지로 하여 업무용 자동차 종합보험계약(이하 '이 사건 보험계약'이라 한다)을 체결하였다.

B. The Defendant is a company that engages in general waste treatment, collection, and transportation business. A driver affiliated with the Defendant, driving a Busan YYY cleaning service vehicle (hereinafter “instant cleaning vehicle”) which is owned by the Defendant, was parked on January 15, 2005 and parked the instant cleaning vehicle in the playground aa elementary school located in the Southern-gu Busan YYY (hereinafter “instant cleaning vehicle”).

D. B, around January 16, 2005, around 09:50 on the following day, the passenger car of this case was leased from A, one’s shape, and the above aa elementary school. On the above sports ground, B operated the above wheel car and did not drive safely by checking well the right and the right of the front while driving the said sports ground, which led to the mistake that B did not drive safely, and the head part of C, who was seated in the said sports ground and was playing play play play, was placed with the front wheels of the left side of the said wheel, and was injured by C, such as double alleys, trauma, and cerebral cerebrs, etc. (hereinafter referred to as the “accident”).

E. C and his family members filed a lawsuit for damages claim against the Plaintiff, the insurer of the instant merger, by the court in 2006Da76138, Jul. 12, 2007, against which the court rendered a judgment that the Plaintiff would pay C, etc. all of KRW 518,319,054 and the delay damages claim therefor, which became final and conclusive.

F. By March 27, 2008, the Plaintiff paid C’s family members KRW 663,921,291 in total as insurance money.

【Reasons for Recognition】

2. Plaintiff’s assertion and judgment thereon

A. Summary of the plaintiff's assertion

B In order to check the condition of cleaning vehicles in the instant case parked in the preceding day according to internal forests, B caused the instant accident while driving the instant passenger vehicle and parking the said cleaning vehicle. Since the accident occurred while B was in the process of preparing for the Defendant’s business, the Defendant, the user of B, is obligated to pay the Plaintiff, who discharged the Defendant by paying insurance money to his family members, with the indemnity amount of KRW 331,960,645 equivalent to the Defendant’s ratio of liability.

B. Determination

The phrase "in relation to the performance of an employee's business", which is an element for an employer's liability under Article 756 of the Civil Act, means that if an employee's unlawful act objectively appears to be objectively related to the employee's business activities, performance of business affairs, or performance of business affairs, without considering the offender's subjective circumstances. Here, whether it is objectively related to the performance of business affairs in appearance should be determined by considering the degree related to the employee's original duties and illegal acts, and the degree of the employee's risk occurrence and the degree of responsibility for failing to take preventive measures (see Supreme Court Decision 2006Da41471, Jan. 18, 2008).

Therefore, even if B operated the instant vehicle to check the condition of the cleaning vehicle due to the snow that was held before that day, whether the instant accident occurred in the course of performing the Defendant’s business should be determined according to whether the instant accident occurred during the process of performing the Defendant’s business, without considering the subjective circumstances as seen above, without considering B’s external circumstance.

As to whether the instant accident occurred in the course of performing the Defendant’s business, the following circumstances, which can be acknowledged in full view of the overall purport of arguments in the statement No. 7-1, No. 7-5, No. 1, No. 7-2, No. 4-2, No. 7-1, No. 7-4, No. 8-1, and No. 8-2, are as follows: The date the instant accident occurred, namely, Sundays, which is a day off in B; B is not a maintenance engineer; the instant passenger car is a vehicle owned by B and is not a vehicle without any relation with the Defendant, and it is difficult to view it as driving of the instant passenger car objectively for the Defendant’s performance, and thus, it is difficult to conclude that the Plaintiff’s judgment was based on the premise that “No. 4-1, No. 2, No. 66, No. 7-1, and No. 97-1, No. 96, and No. 94, which are objectively related to the Defendant’s business performance of the Industrial Accident Compensation Insurance Act.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.