[손해배상(자)][공2009하,993]
[1] In a case where one of multiple operators of the same motor vehicle sustains damage from the accident of the relevant motor vehicle, whether he/she can assert that the other operator is a "other person" under Article 3 of the Guarantee of Automobile Accident Compensation Act (negative in principle)
[2] In a case where a person who lent and operated an insured vehicle from an insured insured person, had his/her substitute driver drive the vehicle, and he/she was injured by a traffic accident, the case holding that the insurer of the insured vehicle cannot be deemed to be a "other person" under Article 3 of the Guarantee of Automobile Accident Compensation Act in relation to the insured person, and that the insurer does not bear the obligation to pay the liability insurance money to the operator
[1] The "other person" under Article 3 of the Guarantee of Automobile Accident Compensation Act refers to a person who operates an automobile for his own sake and a person other than the driver of the pertinent automobile. Thus, even in a case where one of multiple operators who exist in the same automobile sustains damage from the accident of the relevant automobile, the operator who suffered the accident cannot assert that the other operator is "the other person" under Article 3 of the same Act. However, it is only the case where it appears that the other party could easily prevent the occurrence of the accident because it appears more leading or directly than the operational control and operational profit of the operator who suffered the accident, only if it appears that the other party could have easily prevented the occurrence of the accident.
[2] In a case where a person who lent an insured vehicle from an insured insured person registered as an insured person in the contract of liability insurance for motor vehicles had an insured person drive a motor vehicle to his/her agent, and he/she was on board and sustained injuries due to traffic accidents, the case holding that the operator is merely a person with a common operation, and thus falls under the "other person" under Article 3 of the Guarantee of Automobile Accident Compensation Act, but it cannot be viewed as a "other person" in the relation with the insured person, and that the insurer of the insured motor vehicle does not bear a liability insurance payment obligation against the operator
[1] Article 3 of the Guarantee of Automobile Accident Compensation Act / [2] Article 3 of the Guarantee of Automobile Accident Compensation Act
[1] Supreme Court Decision 97Da12884 delivered on August 29, 1997 (Gong1997Ha, 2861) Supreme Court Decision 2000Da32840 Delivered on October 6, 200 (Gong2000Ha, 2293) Supreme Court Decision 2002Da51654 Delivered on December 10, 2002 (Gong2003Sang, 359)
Plaintiff (Law Firm Lin-Type, Attorneys Sung-hwan et al., Counsel for the plaintiff-appellant)
Japanese Fire and Marine Insurance Co., Ltd. (Law Firm Han-chul, Attorneys Kim Gi-hoon et al., Counsel for plaintiff-appellant)
Heung-gu Fire Insurance Co., Ltd. (Attorney Kang Sung-sung, Counsel for the plaintiff-appellant)
Seoul High Court Decision 2007Na28927 decided Nov. 16, 2007
The part of the lower judgment against the Plaintiff regarding the liability insurance money of KRW 13,00,000 shall be reversed, and that part of the case shall be remanded to the Seoul High Court.
1. The court below acknowledged that, while the plaintiff operated the automobile of this case with the permission of use from Nonparty 1, the owner of the automobile of this case, the plaintiff requested a substitute driving for 911 on behalf of the plaintiff in order to avoid drunk driving with a drinking relationship at the time of the accident of this case. Nonparty 2, an employee of the 911 Agency driving, caused the accident and caused injury to the plaintiff. The defendant concluded an automobile liability insurance contract with the above 911 Agency driving with the above 9.1 Agency driving, and the plaintiff's assistant owner entered into the automobile liability insurance contract with the above 9.1 Agency driving contract with the above 1, the contract of the automobile insurance contract of the above Agency driving, the amount of damages for which the plaintiff is liable for damages exceeds the amount of liability insurance paid as automobile accident compensation to the plaintiff from the above 10th Agency driving contract of this case, since the plaintiff and the 1911 Agency driving company agreed not to deduct the amount of liability insurance paid as automobile accident compensation to the above 100th agent operating the automobile of this case.
2. However, it is difficult to accept the above judgment of the court below for the following reasons.
The term "other person" under Article 3 of the Guarantee of Automobile Accident Compensation Act refers to the person who operates a motor vehicle for his own sake and the person other than the driver of the motor vehicle in question. Thus, in principle, even if one of the multiple operators who exist in the same motor vehicle is damaged by the accident in question, the operator cannot assert that the other operator is another person as provided in Article 3 of the Act. However, compared to the driver's control and the profit from operation of the motor vehicle in question, if it appears that the other party could easily prevent the occurrence of the accident, it can only be argued that the other party is another person (see Supreme Court Decisions 97Da12884 delivered on August 29, 1997; 200Da32840 delivered on October 6, 200, etc.).
However, the accident of this case occurred after the plaintiff borrowed the vehicle of this case from the non-party 1 and let the non-party 2, an acting driver, drive the vehicle of this case, and he was on the vehicle of this case. Thus, the plaintiff is an operator under the Guarantee of Automobile Accident Compensation Act, who actually controls the operation of the vehicle of this case at the time of the accident, and is an operator of this case. However, in the internal relationship between the acting driver as a joint operator and the plaintiff, the judgment of the court below as to whether the operation control of the vehicle of this case and the profit-sharing of operation profit are just as to the internal relation.
However, on the other hand, the non-party 1, the registered insured who entered into an automobile liability insurance contract with the plaintiff's assistant intervenor, still has the status of operator as the owner of the vehicle in this case, and it does not seem that the non-party 1's non-party 1, who did not board the vehicle in this case compared to the plaintiff's operational control and operational profit at the time of the accident in this case, did not have been able to prevent the occurrence of the accident easily. Thus, in the relationship between the plaintiff and the non-party 1, the plaintiff cannot assert that the non-party 1 is "other person" as stipulated in Article 3 of the above Act, and therefore, the plaintiff's assistant intervenor does not bear the obligation to pay the plaintiff
Nevertheless, the court below did not decide whether the plaintiff in a joint operator relationship with the non-party 1 can assert "other person" as stipulated in Article 3 of the Guarantee of Automobile Accident Compensation Act in relation to the non-party 1, and determined that the plaintiff's assistant intervenor bears the duty to pay the liability insurance to the plaintiff only for the reasons stated in its reasoning. Thus, the court below erred by misapprehending the legal principles on "other person" as stipulated in Article 3 of the above Act, which affected the conclusion of the judgment.
3. Therefore, the part of the judgment below against the plaintiff regarding the liability insurance money of KRW 13,00,000 shall be reversed, and that part of the case shall be remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.
Justices Shin Young-chul (Presiding Justice)