[2] Whether an insurer who has paid insurance money pursuant to a special contract for indemnity with an insured motor vehicle can exercise the right to claim compensation for damages against the insured person (affirmative with qualification)

[2] Where the damage was caused by an act of a third party, an insurer who has paid the insurance money in accordance with a non-life insurance contract shall, as a matter of course, obtain the rights of the policyholder or the insured against the third party (Article 682(1) of the Commercial Act). However, where there is a person liable to compensate for the damage caused by a traffic accident caused by an non-insurance motor vehicle, an insurer who has paid the insurance money in accordance with a special contract for coverage under an non-insurance motor vehicle with the purport that the insurer compensates the insured for the damage as prescribed by the terms and conditions, may exercise the insurer's right to compensate for the damage to the extent that it does not infringe the insured's rights to the extent that

1. The summary of the judgment below is as follows.

The Nonparty: (a) discovered and immediately suspended the taxi while driving the Oral Ba in the back of the Oral Ba owned by the Defendant (hereinafter “the instant Oral Ba”); (b) however, the Nonparty paid KRW 170,462,00 for the Plaintiff, who entered into an accident insurance contract with the victim, for medical expenses, etc.; and (c) paid KRW 170,462,00 for the Plaintiff’s insurance proceeds under the name of the victim. In light of the degree of injury suffered by the victim of the instant accident, the insurance proceeds paid by the Plaintiff are deemed to be within the reasonable scope of damages; (d) the Defendant is liable to pay the Plaintiff the remainder 150,462,000 calculated by subtracting the liability insurance proceeds returned from the said insurance proceeds, by subrogation of the Plaintiff, pursuant to Article 682(1) of the Commercial Act.

2. We cannot accept the judgment of the court below.

(1) In principle, whether to accept an application for resumption of pleadings when the parties filed an application for resumption of pleadings to submit arguments and certifications after the closing of pleadings belongs to the court’s discretion. However, as for cases where the parties who filed the application for resumption of pleadings failed to have the opportunity to submit arguments and certifications due to the reasons for which it is difficult to assume their responsibility before the closing of pleadings, and where the subject matter of arguments and certifications falls under the facts requiring proof, which can lead to the conclusion of the judgment, the court has a duty to resume pleadings and continue deliberation (see Supreme Court Decisions 2010Da20532, Oct. 28, 2010; 2012Da60909, Oct. 11, 2012). Meanwhile, in cases where damage was incurred by a third party’s act, an insurer may, as a matter of course, compensate for the rights of the insured between the third party or the insured under the proviso to Article 28(1) of the Commercial Act within the scope of the amount of damages paid by the insurer under the terms and conditions.

(2) The record reveals the following circumstances.

① When the first instance court served a complaint to the Defendant’s address written by the Plaintiff, but it was impossible to serve the complaint due to the addressee’s unknown reasons, it served the notice of the date of first instance on the complaint and the first instance court’s notice, and rendered a judgment in favor of the Plaintiff on September 30, 2008, after closing the pleadings at the first instance

② At the first instance court, the Plaintiff submitted the diagnosis of traffic accident, the victim’s medical certificate, and the insurance money payment statement prepared by the Plaintiff as evidence. According to these evidence, only can it be known that the Defendant’s ownership of the instant Obaba, the occurrence of traffic accidents as recognized by the lower court, the occurrence of injury to the victim, and the date, time, amount, and amount that the Plaintiff paid to the victim for medical expenses or agreement. The Plaintiff sought reimbursement equivalent to the insurance money that the victim paid to the Defendant on behalf of the victim pursuant to an accident insurance contract by an non-insurance vehicle and the victim on behalf of the victim pursuant to the accident insurance contract, but did not either reveal whether there was an agreement between the Plaintiff and the victim as the party to the accident insurance contract by the non-

③ Around July 20, 2012, the Defendant became aware of the existence of the judgment of the first instance through compulsory execution by the Plaintiff, and submitted a written appeal for subsequent completion to the first instance court on July 24, 2012. In the appellate brief, the Defendant employed the Nonparty for the delivery of the Plaintiff’s Kcccas operated by the Defendant, and provided the Nonparty for delivery. The Nonparty was driving the instant Ocas in 07:00, but the Nonparty was aware that the Nonparty was driving the instant Ocas in 07:00, not for business hours, and the Nonparty was on board the back seat with the knowledge that the Nonparty would not be liable for damages under the Guarantee of Automobile Accident Compensation Act. However, it is doubtful that the Defendant did not state what name and circumstance the Plaintiff was liable for damages to the Plaintiff, and that the Plaintiff did not wear the safety mother at the time of the instant accident.

④ On February 8, 2013, when the Plaintiff did not appear on the first day for pleading, the lower court: (a) ordered the submission of the Plaintiff’s written brief on the date for pleading; (b) dismissed the Defendant’s application for witness against the Nonparty; and (c) designated February 21, 2013 as the sentencing date on February 21, 2013 by promptly closing the pleadings. Accordingly, on February 14, 2013, the Defendant demanded the Nonparty to re-examine the details alleged in the appellate brief and to provide an opportunity to assert and prove that appropriate amount of compensation for the victim would be calculated; and (c) filed an application for resumption of pleadings, the lower court, on the grounds as

(3) Examining the above facts in accordance with the legal principles as seen earlier, the lower court did not point out that the following was erroneous.

① Since the Plaintiff intends to pay insurance proceeds to the victim and subrogate the insurer in accordance with the special agreement on coverage by an accident-free motor vehicle, the lower court should have examined whether there was an agreement between the Plaintiff and the victim, who is a party to the insurance contract, on the exercise of the right to claim compensation against the obligor for damages.

② Only the evidence submitted by the court below at the time of closing argument in the court below, it is clear that the non-party was unable to properly respond to the defendant's assertion and proof of these circumstances due to the circumstance where it was difficult to impose the defendant's liability, and whether the victim contributed to the occurrence and expansion of damage caused by the traffic accident in this case, such as the degree of injury suffered by the victim, the period of hospitalization, the period and degree of loss of labor ability, the amount of medical expenses, and income and occupation of the victim at the time of the accident in this case. Thus, the matters for which the defendant requested the defendant to provide an opportunity to assert and prove at the time of the accident in this case cannot be confirmed. Thus, the court below should have rejected the defendant's application for witness at the date of pleading in this case without accepting the defendant's application for witness at the date of pleading, and should have continued the hearing in the court below's decision without complying with the procedure for pleading and resumption of pleading in the court below's decision.

(4) Nevertheless, without examining whether there was an agreement between the Plaintiff and the victim on subrogation between the Plaintiff and the Plaintiff, the lower court did not accept the Defendant’s application for resumption of pleadings, and did not err by misapprehending the legal doctrine on the requirements for subrogation of the insurer who has paid the insurance money according to the agreement on the coverage of injury by an uninsurance motor vehicle and the duty of the court to resume pleadings, thereby failing to exhaust all necessary deliberations (In addition, subrogation is recognized within the scope of the insurer’s obligation to pay the insurance money, and the insurer of the special agreement on the coverage of injury by a non-insurance motor vehicle is limited to the amount calculated according to the payment criteria stipulated in the ordinary terms and conditions, and thus, the Plaintiff must also examine whether the amount paid to the victim as agreed money or medical expenses is within the scope of

3. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is 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 on the bench

Justices Lee Sang-hoon (Presiding Justice)