[2] Nature of an insurance contract under the "special agreement for injury to a non-insurance motor vehicle" (=person insurance)

[2] Even though the "special agreement on accident insurance" under the General Insurance Contract takes the form of non-life insurance that compensates for damages against actual damage, in light of the fact that the non-life insurance under the above special agreement includes a motor vehicle where the insured is dead or injured and the motor vehicle is not clearly identified, that is, the so-called "motor vehicle", it can be viewed that the insurance under the above special agreement is a kind of accident insurance, which is a personal insurance, in light of the fact that the insurance is identical to the ordinary accident insurance in that it takes into account only the extent that it takes into account the compensation claim for the person liable for damage who is not actually able to secure it as non-life insurance, rather than understanding it as an accident insurance.

[Plaintiff-Appellant] Plaintiff 1 and 2 others (Law Firm Gyeong, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellant)

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[Plaintiff-Appellant] Plaintiff 1 and 2 others (Law Firm Gyeong, Attorneys Park Jae-soo et al., Counsel for plaintiff-appellant)

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[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellant)

A. The defendant shall pay to the plaintiff 1 the amount of 60,567,340 won and 54,420,480 won to the plaintiff 2 and 54,420,480 won per annum from May 11, 1996 to October 14, 1997, and 25 percent per annum from the next day to the date of full payment.

B. The plaintiffs' remaining claims are dismissed.

2. The costs of lawsuit shall be divided into ten parts of the first and second instances, and one of them shall be borne by the plaintiff and the other by the defendant.

The following facts are not disputed between the parties, or there is no conflict between Gap evidence 1, 2, 3-1 to 3, 4-1, 2, 5-1 to 6, 8, 19-1 to 21, 19-1, 19-1 and 1, and 1, and there is no counter-proof.

A. At around 15:10 on May 4, 1996, the deceased non-party 1 driven by the non-party 2's side 8 ambling ambs (number omitted) ambs (hereinafter referred to as "Gabs") ambs in Busan-gun, the front of the ambs in Busan-gun, the head of Busan-gun, the head of Busan-gun, and the central line was invaded by the central line, and the deceased non-party 3 driver's ambs (number omitted) ambs down in the opposite direction when ambs off the center, and caused the above non-party 3 to die on May 11, 196 at the East Asia-gun University Hospital and caused the plaintiff 1 who was on board the insured vehicle to suffer the plaintiff 6 ambsal ambs (hereinafter referred to as "the plaintiff 1 et al. al. of this case").

B. On May 2, 1995, the above insured non-party 3 entered into a personal automobile comprehensive insurance contract (hereinafter referred to as "the insurance contract of this case") with the defendant with respect to the above insured vehicle from May 24, 1995 to May 24, 1996 with respect to which the insurance period is from May 24, 1995 to May 24, 196, and if the insured or his spouse, child, etc. on board the insured or the insured automobile due to an accident under an non-life insurance (referring to an automobile that is not subscribed to a personal automobile insurance II or a mutual aid contract; hereinafter referred to as "non-party 3"), the non-party 3 entered into a special agreement to compensate for up to 100 million won per person within the limit of the subscription amount of the personal automobile II insurance (hereinafter referred to as "non-party 3's non-party 1's non-party 3's non-party 3, and at the time of the accident of this case, the insured vehicle did not

C. At the time of the death of the deceased non-party 3, Plaintiff 1, his spouse, and Plaintiff 2, his lineal descendant, are the deceased non-party 3.

D. According to the above facts of recognition, since the above non-party 3 died of an accident caused by an non-life-free motor vehicle stipulated in the above non-life-free motor vehicle agreement, the defendant is obligated to pay the insurance proceeds stipulated in the insurance contract of this case to the plaintiffs, barring any special circumstances.

2. Judgment as to the defendant's motion for discharge

A. The defendant's assertion

Since the above insured non-party 3 was driving the above insured vehicle under the without a license at the time of the accident in this case, the accident in this case is subject to Article 3 (2) 3 of the Special Clause of the Insurance Contract of this case (in case of an accident that occurred while the insured was driving without a license, the defendant is not obligated to pay insurance money; hereinafter referred to as the "special clause for non-license exemption"), and as long as the non-life insurance contract of this case is a kind of non-life insurance, the above non-license exemption special clause is valid because it is not subject to the application of Articles 732-2, 739 and 63 of the Commercial Act, and even if the insurance contract of this case is an insurance contract under the "non-life insurance contract of this case" under the above "non-life insurance without a license", regardless of the cause of the accident in this case, the above "non-license exemption special clause" provides for the exemption from insurance money as the condition at the time of the occurrence of the accident in this case regardless of the cause of the accident.

B. The nature of the insurance contract under the "special agreement for injury to an insured motor vehicle"

(1) The Korean Commercial Act divides the insurance into a large non-life insurance and personal insurance and prescribes different legal regulations. However, in the case of non-life insurance in which the insured event is caused by gross negligence of the policyholder, the insured, and the beneficiary, the insurer is not liable to pay the insurance money in accordance with Article 659 of the Commercial Act, but in the case of a life insurance, the insurer is liable to pay the insurance money in accordance with Articles 732-2 and 739 of the Commercial Act. Articles 732-2 and 739 of the Commercial Act provide that the insurer shall be exempted in the case of an insurance accident caused by gross negligence of the insured, etc. as a mandatory provision, is null and void in accordance with Article 63 of the Commercial Act, and this does not exception to the above "non-exclusive special agreement."

(2) In other words, in the case of a non-licensed driving, the possibility of occurrence of an insurance accident is not much denied compared to the case of a person who does not drive or drive a licensed driver, or an individual vehicle with respect to the possibility of occurrence of an accident is not likely to impair the homogeneity between the members in the insurance. In addition, even though a non-licensed driving is an intentional criminal act, its intention is not directly related to a non-licensed driving and is not about death or injury, and it cannot be said that the degree of damage caused by the non-licensed driving of the insured, etc. among the terms and conditions of an insurance contract, is contrary to the trust and ethics of the parties in the insurance contract with compensation for damage, and thus, the damage caused by the non-licensed driving of the insured, etc., among the terms and conditions of an insurance contract, does not compensate for not only the occurrence of an insurance accident by intentionally considering the insurance accident as a whole and also by negligence (including gross negligence) but also by negligence (see Supreme Court Decision 732-2, 739 and 63, May 196, 1996).

(3) Therefore, the issue of whether the above "non-license exemption special agreement" is valid depends on the nature of the insurance contract under the above "non-life insurance special agreement", and according to the above "non-life insurance clause, the existence of a person who is legally liable for the liability of the insurer to the insured for the damage of the insured (Article 2), the insured amount is based on the actual damage of the insured (Article 6), and the subrogation of the insurer (Article 13). However, in the insurance contract of this case, the existence of the person liable for damage is not premised on the existence of the person liable for damage, but the fixed amount is paid at the time of the occurrence of the accident, and the subrogation of the insurer is not acknowledged.

However, under the premise that the existence of a person liable for damage is a non-life insurance and an insurance accident of life insurance, it cannot be a special feature of the life insurance. The fact that two types of the fixed amount insurance and the actual damage insurance exist in the accident insurance, subrogation has been strictly prohibited in the past, but in the case of the accident insurance, subrogation is allowed in the case of the accident insurance by the new establishment of the proviso of Article 729 of the Commercial Act, and the special clause of the non-life insurance is applied on the premise that the insurer is insured (Article 1 of the special clause of the household package insurance). In the case of the occurrence of an insurance accident, the above special clause which is presumed to be a non-life insurance without compensation if it is paid after deducting the amount which can be paid by the self-physical accident from the insurance money to be paid by the above special clause, or if it waives the claim for the insurance money of one's own body, it is not a special clause of the insurer's life insurance (Article 6 of the special clause of the non-life insurance without insurance).

C. Determination

(1) According to Gap evidence No. 19-21 and Eul evidence No. 1, at the time of the accident in this case, the above deceased non-party 3 operated the insured vehicle with no license, and Article 3 (2) 3 of the Clause of the Insurance Contract of this case provides for "non-license exemption special agreement" and there is no counter-proof.

However, as seen above, the above "special agreement for non-life insurance" is a kind of accident insurance, and the part of the insurer's exemption is null and void until the accident caused by negligence (including negligence) of the insured, etc. under Articles 732-2, 739 and 663 of the Commercial Act. Therefore, the defendant's assertion is without merit.

(2) Furthermore, since the defendant's conjunctive assertion is examined as to non-life insurance, it is nothing more than the situation that the insured was in violation of laws and regulations at the time of the occurrence of the insurance accident, and the insurer's liability is reduced because it does not violate Articles 659 and 663 of the Commercial Act, and thus, the validity of non-license special agreement can be recognized as valid because it does not violate the above Article 659 and 63 of the Commercial Act (see Supreme Court en banc Decision 90Meu23899 delivered on December 24, 191, Supreme Court Decision 89Meu32965 delivered on June 22, 1990, Supreme Court Decision 90Meu20654 delivered on January 21, 192, and Supreme Court Decision 92Da38928 delivered on March 9, 193, and Supreme Court Decision 280Da27999 delivered on June 28, 196).

3. The scope of the defendant's liability

A. Whether the negligence is offset by negligence

At the time of the accident, the defendant argued that not only driven by the above deceased non-party 3 but also did not wear the safety belt by the deceased non-party 3 and the plaintiffs, and that such circumstances should also be taken into account in calculating the insurance money to be paid by the defendant as the negligence of the deceased non-party 3 and the plaintiffs was caused by the occurrence of the accident or the expansion of damage. However, since the accident of this case occurred due to the central collision of the above sea-going vehicle, it is not possible to find a proximate causal relation between the above deceased non-party 3's unlicensed driving and the occurrence of the accident of this case, and there is no evidence to prove that the above deceased non-party 3 or the plaintiffs did not wear the safety belt, and therefore, the defendant's allegation of offsetting negligence is

(b) Calculation of insurance money;

Insurance money to be paid by the Defendant to the Plaintiffs under the standard of the General Terms and Conditions [Attachment I] 2 [Attachment II] of the said Personal Automobile Insurance Act shall be as follows:

(1) Insurance money of the deceased non-party 3

(A) Loss proceeds

(1) It shall be calculated by multiplying the employmentable number of months by the Raz's coefficient, which is the amount obtained by deducting the living expenses (no dispute between the parties concerned) of the person himself/herself from the monthly average income (deduction of the amount of withholding tax) of the person's death.

(2) The average monthly income amount: Gold 1,918,533 won (Evidence 11-1 through 4, the whole purport of oral argument)

(3) Calculation details.

Gold 1,918,53 x 2/3 x 152.620 (the birth of August 20, 1961) x 152.620 (the 55 years old at the time of the accident and the 55 years old or under the 55 years old or under the 55 years old or under the 55 years old or under the 243 months old or under the 55 years old or under the 55 years old or under the 195,206,895 won) =

[Evidence] Evidence No. 5-1, 2, Evidence No. 9-1, 2, and 13, the whole purport of oral argument

(b) Funeral expenses: gold 2,000,000 won (no dispute)

(C) Consolation money

① The deceased non-party 3’s consolation money - 1,500,000 won (20 to 60 years of age)

(2) Consolation money for bereaved family members: Plaintiff 1 (spouse) - 750,000 won

Plaintiff Lee Jong-soo (son) - 450,000

(3) Total amount: 2,700,000 won

(d) restrictions on insurance coverage limits

The sum of funeral expenses, loss profits, and consolation money is KRW 199,906,895 (gold KRW 2,000,000 + KRW 195,206,895 + gold KRW 2,700,000). Since the insurance limit is KRW 100,000,000, which is paid as insurance money of liability insurance purchased by sea-going vehicles from the amount reduced to the above limit (no dispute) is 85,00,000 (gold KRW 100,000,000 - gold15,00,000,000).

(2) Plaintiff 1 (in case of injury to Grade 2: No dispute)

(A) Loss from suspension;

Gold 888,280 Won (No. 15-3) x 80% = 710,624 won

(b) Medical expenses: 8,489,225 Won (No. 16 within 3)

(C) Future medical expenses (Evidence A No. 17-1, and the result of commission to the director of the Busan National University Hospital)

Gold 5,400,00 won x 0.9125 (23 months from the date of the accident in this case to the date of the closing of argument in the trial) = 4,927,500 won (see Supreme Court Decision 77Da703 delivered on April 24, 1979)

(d) Consolation money: 440,000 won

(e) Insurance proceeds after deduction.

If the above plaintiff deducts KRW 5,00,000 (no dispute exists) that the above plaintiff received as insurance proceeds of liability insurance covered by the above Maritime Vehicle in total of KRW 14,567,349,00 for business suspension damage, medical expenses, future treatment expenses, and consolation money, the insurance proceeds that the defendant should pay to the above plaintiff shall be KRW 9,567,349 ($710,624 + KRW 8,489,225 + KRW 4,946,400 + KRW 440,000 + KRW 5,00,000).

(3) Plaintiff 2 (in case of injury to Grade 5: No dispute)

(A) Future medical expenses (Evidence A No. 18-1, and the result of the lower court’s commission of physical examination to the director of Busan University Hospital affiliated to Busan University)

Gold 23,00,000 x 0.9125 (23 months from the date of the accident in this case to the date of the closing of argument in the trial. The defendant asserts that the above plaintiff can conduct a sex surgery only when he/she reaches 18 years of age, and thus, he/she should deduct the intermediate interest. However, according to the result of the above physical appraisal entrustment, it can be recognized that he/she can conduct a surgery after the date of appraisal, and the above argument by the defendant is without merit.) = 20,987,

(b) Consolation money: 280,000 won;

(C) Insurance proceeds after deduction

The defendant asserts that the above plaintiff should deduct the amount of KRW 3,00,000 that the defendant should pay to the above plaintiff from the insurance amount that the defendant should pay to the above plaintiff. Thus, there is no dispute between the parties that the above plaintiff received KRW 3,00,000 with the insurance amount of liability insurance covered by the above Maritime Vehicle No. 20. In full view of the whole purport of the argument in the statement of No. 20, the above amount of KRW 2,152,980 among the above amount of KRW 3,00,000 among the amount of KRW 3,00,000,000 and the remaining amount of KRW 847,020 after being appropriated for the above plaintiff's medical expenses. Thus, the above amount of KRW 847,020 ($3,00,000 - 2,152,980) should be deducted from the insurance amount to be paid to the above plaintiff. Thus, the defendant's argument within the above limit for recognition has merit.

Therefore, the insurance money that the Defendant is obliged to pay to the said Plaintiff is KRW 20,420,480 (gold KRW 20,987,500 + KRW 280,000 + KRW 847,020).

(4) Inheritances and personal insurance proceeds for each plaintiff

(A) Plaintiff 1: Inheritance 51,000,000 (the insurance money of Nonparty 3, the deceased Nonparty 3,85,000,000) + Insurance money of the principal,567,349 = 60,567,349 won = 60,567,349 won

(B) Plaintiff 2: Inheritance 34,000,000 (the insurance money of Nonparty 3, the deceased Nonparty 3,85,000,000) + (x2/5), 20,420,480 won = 54,420,480 won = 54,420,480 won

4. Conclusion

Therefore, the defendant is obligated to pay to the plaintiff 1 the amount of 60,567,349 won and the amount of 54,420,480 won and damages for delay from May 11, 1996 for the defendant to October 14, 1997, which are the date of the decision of the court below that is the date of the decision of the court below, for the defendant to claim as to the existence and scope of the obligation to pay damages for delay at each rate of 5% per annum as stipulated in the Civil Act and 25% per annum as stipulated in the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the next day to the date of full payment. Thus, the plaintiff's claim of this case is justified within the above scope of the above recognition, and the remaining claims are dismissed for the reason that it is unfair to conclude the judgment of the court below with a different conclusion, and it is so decided as per Disposition by the assent of all participating Justices.

May 1, 1998

Judges Kim Jong-chul (Presiding Justice)