Law Firm ○○, Counsel for the defendant-appellant

[Defendant-Appellant]

○○○○

Law Firm ○○, Counsel for the defendant-appellant

[Defendant-Appellant]

2. All costs of the lawsuit shall be borne by the Defendant.

3.The portion of the payment of paragraph 1 above may be provisionally executed.

The same part as the payment of Paragraph 1 of the Disposition (the plaintiff extended the claim in this court).

2. Purport of appeal

Of the judgment of the first instance, the defendant ordered the plaintiff to pay more than 30,033,917 won.

The losing part shall be revoked, and the plaintiff's claim corresponding to the revoked part shall be dismissed.

A. On November 22, 2011, C, a national of the People's Republic of China (hereinafter referred to as "China"), entered into an automobile insurance contract (hereinafter referred to as "the instant insurance contract") with the Defendant and the insured motor vehicle, who is the head of a Si/Gun/Gu (hereinafter referred to as "the instant motor vehicle") from November 22, 201 to November 22, 201.

B. The instant insurance contract includes the special terms and conditions of automobile injury with the purchase price of 200,00,000 won at the time of the principal’s death, and the main contents of the instant special terms and conditions of automobile injury (3) include the amount obtained by deducting “the amount of insurance money paid by the company” from the sum of “ordinary terms and conditions,” “the amount calculated according to the standard for payment of injury by an automobile without insurance,” and “the amount calculated according to the standard for payment of injury by an automobile with no insurance,” “the amount of insurance money paid by the company.”

C. C (hereinafter referred to as “the Deceased”) was driving the instant vehicle on January 26, 2012 and died as a traffic accident. The Plaintiff, who was a wife of the Deceased, was a special motor vehicle injury to the Defendant before July 4, 2012.

The insurance money was claimed in accordance with the terms and conditions.

D. At the time of the claim for insurance money, the Plaintiff filed a claim for insurance money on the premise that the amount of insurance coverage indicated in the insurance policy is 200, 186, and 816 won, for the calculation of the deceased’s insurance amount, based on the following grounds:

○ Insurance money shall be calculated by subtracting the deductible amount from the amount calculated by adding the deductible amount to the amount calculated by the standard for payment of personal injury by an insured motor vehicle (hereinafter referred to as the "standard for payment of this case") and the deductible amount shall be calculated by deducting the deductible amount. The deductible amount shall be the excess amount in the case where the sum of the amount that can be compensated by the large and large-scale compensation and the amount that can be paid by the special terms and conditions of an insured motor vehicle and the amount that can be paid by the special terms and conditions of an insured motor vehicle exceeds the actual amount of damages.

○○, however, the amount of compensation for personal injury and personal injury II is KRW 0,00,00, and the sum of the amounts that can be paid under the special terms and conditions of automobile injury is KRW 200,00,00,00,000. However, the actual amount of compensation for the deceased is KRW 152,186,816, funeral expenses KRW 3,00,000, 45,000, 00, 200,186,816, 200, 200, 200,186, and 816, and 200,00,00,000,000, which is the sum of the amounts of the above two amounts. Therefore, the amount of compensation for the deceased’s actual loss falls under the negative value as a foreign worker’s wage.

○ The amount calculated according to the payment standard of the instant case is KRW 200, 186, and 816, and the amount of expense and deduction is KRW 0,00. Ultimately, the amount of the deceased’s insurance amount is KRW 200,00,00, which is the insurance amount under the insurance policy within the limit.

E. As to this, the Defendant did not dispute the fact that the insurance accident under the instant insurance contract occurred, and that there was a duty to pay insurance money according to the automobile injury special clause, funeral expenses, and consolation money. However, in calculating the deductible amount, the Defendant rejected the payment of insurance money by asserting that it should be calculated based on the wages of daily workers in China from January 27, 2014 to February 17, 2029 (the date on which he/she reaches 60 years of age) by asserting that the amount of insurance money should be calculated based on the wages of daily workers in China, inasmuch as the deceased was a resident in Korea at the time of his/her death, but he/she would lose his/her status of stay in China.

【Ground for Recognition: Facts without dispute, Gap 1 to 6, 9, Eul 5, and the purport of the whole pleadings】

A. In calculating the gains from loss caused by death under the special terms and conditions of automobile injury, the method of calculating the gains from loss of a foreigner ought to be calculated based on the wages of domestic daily employed workers, as in the instant payment standard, unlike the method of calculating the gains from loss of a foreigner, as in the instant payment standard. Therefore, the Defendant’s assertion that the amount of gains from loss should be calculated based on the wages of Chinese daily employed workers from January 27, 2014, where the status of stay of the deceased was lost on the ground of the instant payment standard, and where a certain period of time elapsed.

2) Even if not, the deceased is likely to engage in activities in the Republic of Korea on the premise that his/her status of stay remains in Korea, and thus, the amount of loss should be calculated on the basis of the wages of daily workers employed in Korea even after January 27, 2014.

3) Since the deceased’s heir is D’s mother, one-half of the inheritance portion pursuant to Chinese law should be paid to the Plaintiff out of the insurance money of the deceased.

B. Defendant 1) The instant insurance contract provides that the payment standard of this case shall be followed in calculating the insurance money pursuant to the automobile injury special terms and conditions. As such, the amount of loss profit of the deceased shall be calculated in accordance with the payment standard of this case.

2) At the time of the deceased’s death, the period of sojourn for the deceased was set. Accordingly, after the period of sojourn for the deceased expires and a certain period of time, the amount of the deceased’s loss should be calculated on the basis of Chinese daily employed workers’ wages.

3) There is no evidence to deem that the deceased’s heir only D was the mother of the Plaintiff and the deceased. After the judgment of the court of first instance, E may claim the payment of insurance proceeds by asserting that the deceased’s heir is the heir. Therefore, the Plaintiff should prove that the deceased’s heir is two.

3. Determination

A. Determination as to the assertion that the method of calculating gains from loss under the special terms and conditions for automobile injury ought to vary from the method of calculating gains from loss under the instant payment standard

1) As seen earlier, the instant insurance contract provides that insurance money paid pursuant to the instant special terms and conditions for automobile injury shall be the amount obtained by deducting the deducted amount from the aggregate of the amounts and expenses calculated according to the instant payment standard.

2) Therefore, the instant payment standard shall apply to the calculation of insurance money under the special terms and conditions of automobile injury. This part of the Plaintiff’s assertion is difficult to accept as it violates the instant insurance contract provisions.

B. Determination on the criteria for calculating the deceased’s lost profits

1) When calculating the lost profit of a foreigner who is expected to depart from the Republic of Korea after temporarily staying in the Republic of Korea, it is reasonable to determine the lost profit based on the expected benefits of the foreigner during the anticipated employment period or sojourn period in the Republic of Korea, and based on the revenue that the foreigner is expected to depart from the Republic of Korea thereafter, based on the revenue that the foreigner is expected to depart from the Republic of Korea. The period of employment in the Republic of Korea is reasonable by taking into account the purpose and background of entry, the foreigner’s intention at the time of accident, the existence and content of the status of stay, the performance or probability of the extension of the period of stay, the current status of employment, etc. (see Supreme Court Decision 98Da25825, Sept. 18, 199).

2) With respect to the amount of loss profit of March 2, 2014, (b). (5) With respect to the foreigner’s loss profit, the foreigner’s provision provides that the amount of loss profit shall be calculated by calculating the real income amount, and that the person who can be proved as a person, among the lost workers, shall be applied to daily workers’ wages and daily workers’ wages to those other than the lost workers or those who can be proved. Since there is no dispute between the parties as to the fact that the deceased did not have occupation in Korea at the time of his death, the amount of loss profit may be calculated by applying the wages of domestic daily workers until January 26, 2014, which the defendant recognized as the deceased’s sojourn in Korea, but after January 27, 2014, considering the possibility of the deceased’s stay in Korea, the amount of loss profit should be calculated by taking into account the possibility of the deceased’s domestic stay in Korea, the Plaintiff and the deceased’s total number No. 10,117,17, and 28.3).

After its establishment on June 3, 201, the deceased entrusted the instant company to relatives G and received profits therefrom; the deceased was qualified as a spouse at the time of his/her death; the status of stay on April 22, 201, related to attached Table 27 related to attached Table 12 of the former Enforcement Decree of the Immigration Control Act (amended by Presidential Decree No. 23274, Nov. 1, 201; hereinafter the same shall apply) (F-2 (a) falls under the spouse of the citizen; the above Enforcement Decree was changed to the status of stay for marriage on Nov. 1, 2011 as the spouse of the six citizens on August 4, 2006; and the deceased was recognized as having changed to the status of stay for the deceased until his/her residence for the period of stay for the period of stay for the period of death of the deceased until the date of his/her death. < Amended by Presidential Decree No. 23274, Nov. 1, 2011>

Meanwhile, according to Article 23(2) of the former Enforcement Decree of the Immigration Control Act, a person holding the status of stay F-2(a) is not restricted in job-seeking activities, and according to attached Table 1 related to attached Table 18-2 of the Enforcement Rule of the Immigration Control Act, the upper limit of the period of stay for each status of stay granted on one occasion is three years in both F-2 and F-6.

4) According to the facts found above, although the deceased was a Korean national of China, it is reasonable to view that the insurance contract of this case was concluded with respect to the automobile of this case as a Korean national of the ship married to the plaintiff, and that the company of this case was entrusted to a Chinese relative, if he did not die, he would have lived in our country with the status of stay for marriage immigrants while maintaining her marriage and maintaining her marriage. Unlike the situation that the deceased did not extend her status of stay at the expiration of the period of stay, it does not appear that the deceased would return to China regardless of the Republic of Korea where her wife was located, on the premise that she would continue to stay in Korea even after January 27, 2014. Therefore, the amount of lost daily workers' wages should be calculated on the basis of the amount of lost profits on the basis of

C. Determination on the assertion related to the heir

1) Article 49(1) of the Private International Act provides that inheritance shall be governed by the law of nationality of the inheritee at the time of the death of the deceased, and since the deceased has Chinese nationality at the time of the death, the relationship of inheritance of insurance money under the insurance contract of this case shall be governed by the law of China. According to the inheritance law of the People’s Republic of China, inheritance is commenced (A 15), inheritance is the death of the inheritee (Article 2), and inheritance rights are equal (Article 9), both men and women are equal, (Article 10), and inheritance is the spouse, children, parents, and (Article 13).

2) According to the overall purport of Gap 12, 14, and 16, according to the purport of the arguments and arguments, the deceased is the mother of both the plaintiff and the Chinese nationality, and the withdrawal of the lawsuit after the judgment of the court of first instance is not registered as the deceased’s children on the family relations register. The mother of the deceased filed a lawsuit against the defendant under the Seoul Central District Court 2013 group 5152945, and the lawsuit is pending in the Seoul Central District Court. Meanwhile, in the judgment of the court of first instance, Eul was recognized as the inheritor of the deceased, but the defendant was not registered on the family relations register after the appeal, and voluntarily withdrawn the lawsuit (this court’s obvious facts).

3) Accordingly, the deceased’s heir is only D’s mother, and there is no other inheritor. This part of the Defendant’s assertion is difficult to accept (this part of the Defendant’s assertion is inconsistent with the existing assertion that E is not the deceased’s heir, as well as E’s withdrawal of a lawsuit after the judgment of the first instance court, and E cannot bring a lawsuit again against the Defendant pursuant to Article 267(2) of the Civil Procedure Act.

D. Determination on the amount of insurance proceeds

Based on the above judgment, there is no dispute that the Plaintiff should calculate the amount of insurance money on the basis of funeral expenses of KRW 3,00,000, 000, 45,000, and 00.

2) The amount of the deceased’s lost profit shall be 152,640,712 won and the amount shall be calculated as follows:

(1) Wages for daily employed workers: 1,668, 337 won [[The wages of ordinary workers in the construction sector 75,608 won (A), + Wages of ordinary workers in the construction sector 57,859 won (unstrifed facts): 2】 2】 25 days, and servers below won].

③ 사망일부터 취업가능연한까지 월수에 해당하는 라이프닛쯔 계수 : 137. 2391

(1) Date of birth: February 17, 1969.

The date of death: the date of death: January 26, 2012

(C) B.C.: February 17, 2029 (within the age of 60)

(2) Number of months: 204 months (p.m. - Before maturity, or less than monthly).

① 204개월에 해당하는 라이프닛쯔 계수 : 137. 2391

④ The amount calculated according to the standard for the insurance payment of this case, which is stipulated in Article 1-(3) of the Special Terms and Conditions for the Injury of Motor Vehicles, shall be KRW 200, 640,712 [the amount calculated according to the standard for the insurance payment of this case = 152,640,712 + funeral expenses KRW 3,00,000 + KRW 45,000 + KRW 45,000 + KRW 3,000 + KRW 0,000] ¡¿ The deductible amount shall be KRW 0,00, KRW 200, KRW 152,640, KRW 712, and KRW 200, KRW 200, KRW 200, KRW 200, KRW 200, KRW 200, KRW 200, KRW 200, KRW 200, KRW 200, KRW 204, KRW 200, KRW 200, KRW 2064, etc.

① The deductible amount in calculation is -640,712 won ( = zero won in the amount entitled to receive compensation for personal injury and personal injury II + 200,000,000 won in actual amount of compensation - 200,640,712 won in the amount of actual damage). ② The amount of actual deduction is 00,000 won in the case of bad deposit in accordance with the automobile injury special terms and conditions. Therefore, the Defendant does not have an obligation to pay 100,000 won in interest rate of 10,000 won in the Plaintiff among the deceased’s heirs ( = 200,000,000 inheritance shares of X 1/2 in the interest rate of 1/100 in the interest rate of 30% in the insurance contract from the date of filing a claim for insurance money to the date of expiration of 10% in the interest rate of 20,712.7.14, 2017.

4. Conclusion

The plaintiff's claim should be accepted on the grounds of its reasoning, so the judgment of the court of first instance, including the extended claim in this court, is modified as per Disposition.

Judges Lee Jong-tae

Judge Dong-ju