[2] The extent of the effect of advance payment made by an insurance company to the victim under Article 11 of the Guarantee of Automobile Accident Compensation Act

[2] In full view of the provisions of Article 11(1) and (3) of the Guarantee of Automobile Accident Compensation Act, Article 10(1) of the Enforcement Decree of the Guarantee of Automobile Accident Compensation Act, etc., it is reasonable to view that advance payment made by an insurance company, etc. to the victim affects the whole liability for damages arising from an accident,

1. The court below acknowledged the fact that the deceased non-party suffered from injury and died while receiving treatment, etc. due to the traffic accident of this case, and recognized the deceased's total property damage amount of KRW 79,854,929, which is the amount obtained by multiplying the deceased's ratio of liability by 40% from the total property damage amount of the deceased's lost income, king treatment expenses, nursing expenses, funeral expenses, etc., as stated in its reasoning, and deducted the amount of KRW 54,772,686, which is the equivalent to the ratio of the deceased's negligence from the medical expenses that the defendant paid by the deceased, and KRW 60 million from the advance payment made by the deceased pursuant to Article 11 of the Automobile Accident Compensation Guarantee Act at the time of the deceased's survival (hereinafter "Act"), -34,917,757, and property damage was all compensated, and separately recognized as consolation money of KRW 20 million,000,000 for each of the plaintiffs' damages claim by each plaintiff.

2. However, we cannot accept the above decision of the court below.

The insurer's liability for compensation based on Article 3 of the Act covers all of the legal losses in proximate causal relation with the accident. In the case of a death accident, the damage subject to compensation includes both active damages, such as medical expenses, and passive damages such as lost income, and mental damages such as loss (see Supreme Court Decision 2003Da67755, Apr. 16, 2004, etc.).

Meanwhile, Article 11(1) of the Act provides, “Where the insured, etc. has caused the death or injury of another person due to the operation of a motor vehicle, the victim may request the insurance company, etc. to pay the full amount of motor vehicle insurance medical fees, and the amount prescribed by Presidential Decree with respect to the other insurance money, etc. as advance payment to pay the insurance money, etc. under Article 10, as prescribed by Presidential Decree.” Article 11(3) of the Act provides, “In cases of an injury under subparagraph 2, the insurance company, etc. may request the person who has received the advance payment to return the excess amount, if the insurance money, etc. to be paid exceeds the insurance money, etc. to be paid under paragraph (2).” Further, Article 10(1) of the Enforcement Decree of the Act provides, “The amount prescribed by Presidential Decree” refers to the amount equivalent to 50/100 of the amount of damage suffered by the victim within the scope of the amount classified as follows:

As such, the Act and the Enforcement Decree provide that the advance payment made by an insurance company, etc. to the victim is the "amount of damage" caused by the victim. After the confirmation of the amount of compensation for damage becomes final and conclusive, the insurance company, etc. may demand the return thereof if it has been paid in excess on the premise that the advance payment made in the "insurance money to be paid" should be deducted, and there is no ground to deem that the advance payment was paid only to the victim's property damage out of the damage caused by an accident. In addition, there is only a statement that the Defendant received part of the "Agreement" (Records No. 94, 100) prepared at the time of the advance payment to the deceased as the "legal damage compensation" and there is no other evidence to deem that the Defendant and the Deceased received the advance payment only to the property damage.

In light of the above legal principles, it is reasonable to view that advance payment made by an insurance company, etc. to a victim is effective as to the whole liability for damages caused by an accident, unless there are special circumstances.

Nevertheless, the lower court did not deduct the remaining advance payment after deducting from the deceased’s property damage on the premise that the Defendant’s advance payment is effective only for property damage. In so doing, the lower court erred by misapprehending the legal doctrine on the advance payment as prescribed by the Act, thereby adversely affecting the conclusion of the judgment. The ground of appeal assigning this error is with merit.

3. Therefore, the part of the lower judgment against the Defendant is all reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ko Young-han (Presiding Justice)