[2] The case holding that the company is an operator of a motor vehicle in case where the accident occurred, in which the owner of the motor vehicle completed his duties while the company was engaged exclusively in the lease and exclusive use of the motor vehicle by the owner of the motor vehicle, and the driver of the motor

[2] The case holding that the director of the company entered into a contract for the lease of a motor vehicle and the provision of driving services with the owner of the motor vehicle, placed the owner of the motor vehicle at his construction site to be engaged in the work of transporting materials and residuess, etc. using the motor vehicle under his direction and supervision for not less than one year until the accident occurred, and had the owner of the motor vehicle take charge of the work equipment and fuel used at the construction site, and had the owner of the motor vehicle take charge of management expenses, such as fuel charges, engine errors, consumption expenses, etc. while exclusively using the motor vehicle only at the construction site of the company, and even at the time of the accident, the company was in the position of a person who controls the operation of the motor vehicle at the time of the accident.

1. On the first and second grounds for appeal

A. Facts acknowledged by the court below

The Defendant Company is a company established for the purpose of its business, such as urban gas production and supply, gas supply facility construction business, etc., and the Defendant Company’s Department of Construction and the Si (C) Team Director, the Kim Sang-cat Team Director, was provided with the services of Nonparty 1 to transport materials in the construction site and dispose of residues, wastes, etc. generated in the course of underground gas pipes between Nonparty 1 on October 18, 1991. However, the Defendant Company entered into a contract for the lease and driving service supply of the so-called monthly vehicle with Nonparty 1 to pay KRW 1,60,000 per month regardless of the actual number of working days, regardless of the usage fees and water supply charges. Nonparty 1, as well as Nonparty 1, who had been placed in the team of his command with Nonparty 1, such as Kim Young-ro, to take charge of transporting materials, soil, wastes, etc., using the above freight vehicle, and to treat them to the storage, etc., other than the day of the operation and work order, and the day after the completion of the operation.

In accordance with the above contract, Nonparty 1 received consumption expenses, such as fuel costs and engine errors, etc., which are required for the operation of the above cargo vehicles, from the Defendant Company instead of having the above cargo vehicles exclusively used at the construction site of the Defendant Company.

그런데 소외 1은 현장소장인 위 김상혁의 지시에 따라 1992. 10. 23. 21:00경부터 같은 달 24. 07:00까지 그 판시 공사 현장에서 가스관을 매설하는 철야 작업에 참여하여 자신의 작업을 끝내고 위 현장소장의 권유에 따라 다른 작업 인부들과 함께 1시간 가량 위로 회식을 마친 뒤 발전기 등 1톤 가량의 피고 회사의 화물을 위 화물차의 적재함에 싣고 작업 인부인 위 김웅을 운전석 옆 좌석에 동승시킨 채 위 화물차를 운전하여 집으로 귀가하던 중 깜박 졸음운전을 하다가 교통사고를 일으켜 위 김웅을 사망에 이르게 하였다.

B. The judgment of the court below

Although the above duties of Nonparty 1 had appearance as shown by the above vehicle and driving service contract entered into on the equal status with the defendant company, they actually leave the construction site and take charge of the work adjustment or work order of the defendant company through the site manager, and the contents of the duties are added to the defendant company's work equipment and other storage work as well as the work operation. The defendant company is actually using the above cargo of Nonparty 1 for about one year until the accident occurred until the accident occurred, only in the construction site of the defendant company, and instead, bears the fuel cost, etc. necessary for the operation of the above cargo. In light of the above, it is reasonable to view that the defendant company is in the position of the user who actually directs and supervises Nonparty 1 with respect to the above duties, and the accident of this case occurred in the process of withdrawing from the office of the defendant's office immediately after the completion of the above work, and the plaintiffs are closely responsible for the execution of the above duties of the defendant 1 as an accident related to the non-party 1's above work.

C. Judgment of the Supreme Court

According to the records (the plaintiff's attorney as an employee of the non-party 1 or as a person operating a motor vehicle for himself/herself) and the written application for modification of the purpose of the claim and its cause (the 466 pages) and the written complaint (the 16 pages) can be found to have been selectively asserted that the defendant company is liable for the damages suffered by the plaintiffs.

However, Article 3 of the Guarantee of Automobile Accident Compensation Act is a special provision of the Civil Act concerning a tort. Thus, even if a person who suffered from an automobile accident did not claim damages under the Guarantee of Automobile Accident Compensation Act, the court should apply the Guarantee of Automobile Accident Compensation Act in preference to the Civil Act (see Supreme Court Decisions 87Meu1388, Oct. 28, 1987; 68Da2071, Jun. 10, 1969; 67Da1695, Sept. 26, 1967; 197; 200Da1695, Sept. 26, 196).

On the other hand, according to the facts duly admitted by the court below, the above Kim Jong-ge, the Director General of the defendant company, entered into a contract for automobile lease and driving service with the non-party 1, placed the non-party 1 at his construction site, and had him engage in the work of transporting materials and residues using the above cargo, etc. for at least one year until the accident in this case occurred, and after work, he stored fuel, such as tools, power generators, oxygens, etc., and light oil, gasoline, etc., used at the above construction site, and the non-party 1 was paid management expenses, such as fuel cost, engine error, and consumption goods, etc., only at the construction site of the defendant company, and even at the time of the accident in this case, the freight in this case was loaded with freight such as the defendant company's power generator, etc., so the defendant company should be deemed to have been in the status of a person who was in charge of operating the freight in this case at the time of the accident in this case, and there is no other circumstance to find immunity from the defendant company on the record.

If the defendant company was in the position as an operator of the above cargo vehicle at the time of the accident of this case, the court below should have first recognized the defendant company's liability for damages by applying the Guarantee of Automobile Accident Compensation Act, but it is erroneous for the defendant company to recognize the defendant company's liability for damages by taking account of the employer's liability under the Civil Act. However, such error of the court below did not affect the conclusion of the judgment recognizing the defendant company's liability for damages of this case against the plaintiffs. Thus, the judgment

2. On the third ground for appeal

In a claim for damages due to a tort, the fact-finding or determination of the ratio of comparative negligence is subject to the exclusive authority of a fact-finding court unless it is deemed that it is remarkably unreasonable in light of the principle of equity (see Supreme Court Decisions 95Da24340, Jan. 23, 1996; 92Da20477, Sept. 25, 1992).

The court below, based on its evidences, found that the non-party 1, who completed the steel-free work, was guilty of taking the above cargo vehicle operated by the non-party 1 under the influence of alcohol, and determined the 20% of the negligence ratio as 20% in accordance with the records, is justified in examining the relevant evidence, and there is no error of law as pointed out in the Grounds for Appeal.

3. Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jong-sik (Presiding Justice)