[2] The scope of risk that an insurer of a special contract for indemnity with an insured motor vehicle takes over (=amount calculated according to the payment criteria of insurance money stipulated in the terms and conditions)

[3] The case reversing the judgment of the court below which did not offset funeral expenses and consolation money into negligence in calculating compensation under the Guarantee of Automobile Accident Compensation Act and insurance money under the special agreement on accident compensation for non-life-free vehicles, unlike those stipulated in the automobile insurance clause which is the basis thereof

1. As to the grounds of appeal Nos. 1 and 2

Based on the facts acknowledged by the employment evidence, the court below is just in determining that the death of the victim due to the operation of a motor vehicle is not due to the full negligence of the victim, and that it is due to the violation of the duty of care of the driver and the negligence of the victim. There is no violation of the rules of evidence or misapprehension of the legal principles as to

2. Regarding ground of appeal No. 3

According to the reasoning of the judgment of the court below, the court below, based on the premise that the defendant is liable to pay compensation by the government for damage caused by the motor vehicle accident compensation business and insurance money based on the special agreement for injury compensation by the non-insurance motor vehicle, and based on the policy of liability insurance and the special agreement for injury compensation by the non-insurance motor vehicle, set off negligence only for lost income in calculating the lost income, and did not set off funeral expenses and consolation money against negligence.

However, it is difficult to accept such a measure by the court below for the following reasons.

In the event of an accident or an accident involving an accident involving an accident in which the holder is unknown, the compensation for damage paid pursuant to Article 26(1) of the former Guarantee of Automobile Accident Compensation Act (wholly amended by Act No. 9065 of Mar. 28, 2008; hereinafter the same shall apply) shall be paid only within the insurance coverage limit of liability insurance, unlike the liability insurance that compensates the amount based on the actual amount of damage (see Supreme Court Decision 2002Da2454, Jul. 25, 2003). In addition, the insurer of the special contract for indemnity by an accident without an insurance motor vehicle shall be deemed to have accepted the risk not based on the actual amount of damage of the insured, but limited to the amount calculated according to the standard for the payment of the insurance amount under such contract (see Supreme Court Decision 2003Da7302, Apr. 27, 2004).

However, the defendant's automobile insurance clause (Evidence No. 3) which is a common basis for calculating the compensation under the Guarantee of Automobile Accident Compensation Act for the accident in question and calculating the insurance money according to the special agreement for accident compensation for non-life insurance (Evidence No. 3) provides for funeral expenses, consolation money, and profit-making amount, which serves as the payment standard in the case of death under paragraph (24), or the purpose of offsetting the amount calculated according to the victim's fault ratio with respect to the amount calculated according to the above standard under paragraph (27) 1. Thus, as long as the above compensation and insurance amount are to be calculated in accordance with the standardized contract, if the victim was negligent, not only

Therefore, the judgment of the court below which did not set off the above compensation and insurance money as negligence while applying the defendant's automobile insurance clause, was erroneous in the misapprehension of legal principles as to the compensation by the government for damage under the automobile accident compensation business and the calculation of insurance money under the special agreement for injury compensation by the non-life insurance, and it is obvious that such illegality affected the conclusion of the judgment. Thus, the ground of appeal pointing this out

3. Conclusion

Therefore, the part of the judgment below against the defendant is reversed and remanded to the court below for a new trial and determination. The defendant's remaining appeals are all dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jeon Soo-ahn (Presiding Justice)