Article 726-4 of the Commercial Act provides that “The transferee succeeds to the transferor’s rights and duties concerning the mandatory insurance contract from the date of transfer of a motor vehicle to the date when the period of application for registration of transfer of ownership under the Motor Vehicle Management Act expires (in cases where the transferee concludes a new liability insurance contract, etc., the date of conclusion of the contract)” shall be reflected in the provisions of Article 26-4 of the Guarantee of Automobile Accident Compensation Act, which provides that “The transferee shall succeed to the transferor’s rights and duties concerning the mandatory insurance contract,” and such legal principle also applies to cases where the insured transfers the insured motor vehicle during the insurance period to the transferee, unless the insurer’s consent is obtained, to prevent the non-insurance state of the motor vehicle that may occur due to the failure to succeed to the rights and duties of the insurer, and to protect the victim and the transferee, barring any special circumstance.” The term “transfer of the motor vehicle” refers to cases where the transferee of the motor vehicle, who actually acquired the de facto control of the motor vehicle by transfer of the motor vehicle by transfer of the motor vehicle, transfers the motor vehicle to a third party without obtaining approval for replacement.

1. In ordinary terms and conditions of automobile insurance, the provisions of the general terms and conditions of automobile insurance stipulate that "where the policyholder or the insured transfers the insured automobile during the insurance period, the rights and obligations of the policyholder and the insured arising from the existing insurance contract shall not be succeeded to the transferee of the insured automobile, but where the policyholder is notified in writing to the effect that it would transfer this right and obligations to the transferee of the insured automobile, and the insurance company approves it by the insurance company, the existing insurance contract shall apply to the transferee from the time of approval by the policyholder or the named insured (hereinafter referred to as "transfer terms and conditions") and that "where the policyholder or the named insured transfers the existing insured automobile during the insurance period and replaces it with another automobile of the same type as the former one, the policyholder shall be notified in writing to the effect that the policyholder will succeed to the existing insurance contract from the time of approval by the insurance company, and in this case, the effect of the existing insurance contract on the insured automobile shall be lost at the time of the above approval (hereinafter referred to as "transfer terms and conditions"), the insurer shall be deemed as the mandatory insurance contract and the insured automobile within 15th day (hereinafter referred to be referred to as "the insurer's."

Such a mandatory insurance policy reflects Article 26-4 of the Guarantee of Automobile Accident Compensation Act that “A transferee succeeds to the transferor’s rights and duties concerning mandatory insurance contract during the period from the date of transfer of a motor vehicle to the date when the period of application for registration of transfer of ownership under the Automobile Management Act expires (where the transferee entered into a new liability insurance contract, etc., the date of entering into such contract)” and Article 726-4 of the same Act provides that “If the insured motor vehicle is transferred during the insurance period, the transferee shall succeed to the transferor’s rights and duties concerning the mandatory insurance contract.” This legal doctrine also applies to the transfer of a motor vehicle to the transferee without the insurer’s consent, unless the insured transfers the insured motor vehicle during the insurance period, to prevent the state of non-insurance of the foregoing motor vehicle that may occur due to the failure of the insurer’s consent, and to protect the victim and transferee, barring any special circumstance, the “transfer of the motor vehicle” here refers to the transfer of the motor vehicle by a transferee of the motor vehicle and the transferee of the motor vehicle, instead of the transfer, without the transfer of the motor vehicle, to a third party.

2. The reasoning of the lower judgment and the evidence duly admitted and examined by the lower court reveal the following facts.

A. The Plaintiff is an insurer who entered into an insurance contract for automobile dealers (hereinafter referred to as “Plaintiff’s insurance contract”) with one alliance call center as the insured, and the Defendant is the insurer who entered into an insurance contract for business use (hereinafter referred to as “Defendant’s insurance contract”) with Nonparty 1 as the insured, Nonparty 1 as the insured (vehicle No. 1 omitted), and as the insured, the Defendant was the insurer who entered into an insurance contract for the automobile for business use (hereinafter referred to as “instant accident vehicle”).

The Plaintiff’s insurance contract provides that only the amount exceeding the amount that can be paid by the Plaintiff’s insurance for personal compensation should be compensated by the Plaintiff’s insurance for personal compensation, and the Defendant’s insurance contract does not exclude an automobile dealer such as a substitute driver from the Plaintiff’s and the Plaintiff’s insured. Meanwhile, the Defendant’s insurance contract has a standardized contract, such as the transfer contract, the replacement contract, and the mandatory insurance contract, as seen earlier, under the ordinary contract and the special contract.

B. Nonparty 1 purchased the instant vehicle on July 5, 2012 (vehicle No. 2 omitted), and sold the instant vehicle to Nonparty 2, an employee of the instant automobile business office, along with relevant documents. On the same day, upon obtaining approval from the Defendant in accordance with the terms and conditions of replacement of the Defendant insurance contract, replaced the insured vehicle of the Defendant insurance contract from the instant accident to the instant purchased vehicle, and completed transfer of ownership on the instant purchased vehicle.

C. On July 6, 2012, Nonparty 2 sold the instant vehicle to Nonparty 3, a secondhand exporter, without registering the transfer of ownership on July 6, 2012. Nonparty 3 also requested the Union, an agent driving company, to transport the instant vehicle to the garage without registering the transfer of ownership.

On the same day, Nonparty 4, an employee of the Union, caused an accident that causes injury to the driver and his/her passengers by shocking other vehicles while driving the instant vehicle (hereinafter “instant accident”), and the Plaintiff paid 2,864,400 won in total to the said victims.

3. We examine the above facts in light of the legal principles as seen earlier.

A. On July 5, 2012, the instant vehicle was transferred from Nonparty 1, the insured of the Defendant’s insurance contract, to Nonparty 2, and from Nonparty 2, to Nonparty 3 without registering the transfer of ownership. Accordingly, since the actual possession and de facto control over the instant vehicle was transferred in sequence to Nonparty 2 and Nonparty 3, the Defendant purchased the instant vehicle with the approval of the Defendant under the terms and conditions of the mandatory insurance contract included in the Defendant’s insurance contract for a period of 24 days from July 5, 2012 until the 15th day from July 5, 2012, pursuant to the mandatory insurance contract, the Defendant purchased the instant vehicle to Nonparty 2 and Nonparty 3. The same holds true even if Nonparty 1 purchased the instant vehicle with the approval of the Defendant in accordance with the terms and conditions of the replacement of the Defendant’s insurance contract on July 5, 2012.

Meanwhile, the instant accident occurred when Nonparty 3 took over the instant vehicle on July 6, 2012 and requested the driver to one Union, which is an agent driving company, and Nonparty 4, who is its employee. As such, it is reasonable to deem that Nonparty 3 had a driving control and operating profit for the instant vehicle in relation to the victims of the instant accident (see Supreme Court Decision 94Da5502, Apr. 15, 1994). Accordingly, the Defendant is liable to compensate the said victims for damages under Article 3 of the Guarantee of Automobile Accident Compensation Act. Accordingly, the Defendant is obliged to pay the personal indemnity I for the said liability of Nonparty 3 according to the mandatory insurance terms and conditions of the Defendant’s insurance contract. Since the Plaintiff, who is obligated to compensate only the amount exceeding the amount that the Plaintiff would be entitled to receive under the personal liability insurance, paid the insurance money to the victims of the instant accident to the victims of the instant accident, the Defendant is obligated to pay the Plaintiff’s insurance money to the Plaintiff.

B. Nevertheless, the court below rejected the Plaintiff’s claim on the ground that, although the instant accident occurred before 15 days have elapsed since the date the instant accident occurred from Nonparty 1’s transfer to Nonparty 3 via Nonparty 2, Nonparty 1 obtained approval from the Defendant in accordance with the terms and conditions of replacement of the Defendant’s insurance contract before the instant accident occurred, once Nonparty 1 replaced the insured automobile of the Defendant’s insurance contract from the instant accident to the instant purchased vehicle, the terms and conditions of the Defendant’s insurance contract are not applicable. In so doing, the court below erred by misapprehending the judgment contrary to the precedents of the Supreme Court under Article 3 subparag. 2 of the Trial of Small Claims Act.

4. Therefore, the lower judgment is reversed, and 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 Park Sang-ok (Presiding Justice)