[1] In a case where the assistance business operator entrusted with the business of guaranteeing motor vehicle accident compensation under Article 37 (1) of the former Guarantee of Automobile Accident Compensation Act pays compensation to the victim, whether the victim can exercise the right to claim compensation on behalf of the victim (affirmative)

[2] Purport of the guarantee business of motor vehicle accident compensation under the former Guarantee of Automobile Accident Compensation Act, and in the case where a guarantee business operator determined a motor vehicle owner due to an accident caused by the operation of a motor vehicle for which the identity of the motor vehicle is unknown and the motor vehicle owner was found thereafter, whether the guarantee business operator is exempted from the obligation of compensation payment under Article 26 (1) 1 of the former Guarantee of Automobile Accident Compensation Act (negative)

[3] In a case where Gap corporation, an insurer entrusted with the duties of guaranteeing motor vehicle accident compensation business of the government, paid compensation to Eul et al., who is the bereaved family member of the victim of the traffic accident in accordance with Article 26 (1) 1 of the former Guarantee of Automobile Accident Compensation Act, and the owner of the sea-going vehicle is found, the case holding that the court below erred in the misapprehension of legal principle in holding that Gap corporation cannot exercise the right to claim compensation against Eul et al. against the insurer of the automobile

[1] In a case where the assistance business operator entrusted by the Minister of Construction and Transportation with the business of assistance business under Article 26 (1) of the Act pursuant to Article 37 (1) of the former Guarantee of Automobile Accident Compensation Act (amended by Act No. 8852 of Feb. 29, 2008; hereinafter the “Act”) pays compensation to the victims, the assistance business operator may exercise the right to claim compensation by the victim against the person who is liable for damage under Article 3 of the Act pursuant to Article 31 (1) of the Act.

[2] The main purpose of a business guaranteeing motor vehicle accident compensation under Article 26 of the former Guarantee of Automobile Accident Compensation Act (amended by Act No. 8852, Feb. 29, 2008; hereinafter “the Act”) is to compensate for damage to a victim who died or was injured due to an accident caused by the operation of a motor vehicle without an insurance policy within the scope of liability insurance. The purpose of the provision is to supplement the motor vehicle liability insurance system, which is legally enforced for the purpose of protecting the victim of a traffic accident caused by a motor vehicle without an insurance policy or a motor vehicle accident caused by an accident without an insurance policy. Considering the content and purpose of the provision, in a case of determining an accident caused by the operation of a motor vehicle, the guaranteed business operator is obligated to pay compensation to the victim, and even if it is found that a motor vehicle owner was found after the payment of compensation, the guaranteed business operator is not exempt from the obligation to pay compensation under Article 26(1)1 of the Act.

[3] In a case where Gap corporation, an insurer entrusted with the duties of guaranteeing motor vehicle accident compensation business of the government, paid compensation under Article 26 (1) 1 of the former Guarantee of Automobile Accident Compensation Act (amended by Act No. 8852 of Feb. 29, 2008) to Eul et al., who is the bereaved family of the victim of the traffic accident, and the owner of the harming vehicle is found, the case holding that the judgment below erred by misapprehending legal principles in holding that Gap corporation cannot exercise the right to claim compensation for damages against Eul et al. against Eul et al., on the ground that it is difficult for Gap corporation to recognize the fact at the time of payment of compensation to Eul et al., and since it is difficult to see that the harming vehicle driver was under an investigation by the police at the time of payment of compensation and that it was possible to confirm such circumstance based on the data and the confirmation data.

[1] Articles 26(1) (see current Article 30(1)), 31(1) (see current Article 39(1)), and 37(1) (see current Article 45(1)) of the former Guarantee of Automobile Accident Compensation Act (Amended by Act No. 8852, Feb. 29, 2008); / [2] Articles 26(1) (see current Article 30(1) and 37(1) (see current Article 45(1)) of the former Guarantee of Automobile Accident Compensation Act (Amended by Act No. 8852, Feb. 29, 2008); / [3] Article 26(1)1 (see current Article 30(1) and (1)1 (see current Article 30(1)1 and (3) (see current Article 30(1) and (3)1) (see current Article 45(1)) of the former Guarantee of Automobile Accident Compensation Act (Amended by Act No. 8852, Feb. 29, 2008)

[2] Supreme Court Decision 2004Da35113 decided Apr. 15, 2005 (Gong2005Sang, 736)

Mez Fire Marine Insurance Co., Ltd. (Attorney Park Jae-sik, Counsel for the plaintiff-appellant)

Dong Fire Insurance Co., Ltd.

Defendant 2 and two others

Seoul High Court Decision 2010Na81638 decided August 10, 2011

The part of the judgment below against Defendant East Fire Insurance Co., Ltd. is reversed, and that part of the case is remanded to Seoul High Court. All appeals by Defendants 2, 3, and 4 are dismissed. The costs of appeal by Defendants 2, 3, and 4 are assessed against the Defendants.

The grounds of appeal are examined.

1. Plaintiff’s ground of appeal

A. Article 26(1) of the former Guarantee of Automobile Accident Compensation Act (amended by Act No. 8852, Feb. 29, 2008; hereinafter “the Act”) provides that “In cases falling under any of the following subparagraphs, the Government shall compensate for the damage inflicted upon a victim within the scope of insurance money covered by liability insurance” (Article 26(1) of the Act). Article 31(1) of the Act provides that “in cases where the owner of an automobile is unable to identify, or injured due to the operation of an automobile, for which the owner of the automobile is unable to identify,” and Article 31(1) of the Act provides that “In cases where the Government compensates for the damage under Article 26(1), it may exercise in subrogation the victim’s right to claim compensation against a person who is liable for damage under Article 3 to the extent of the amount of compensation.” Thus, in cases where the assistance business operator has paid compensation to the victim pursuant to Article 26(1) of the Act, the guarantee business operator may exercise the right to claim compensation against the victim under Article 31(31) of the Act:

In addition, the main purpose of the Guarantee Business of Automobile Accident Compensation (hereinafter “Guarantee Business”) stipulated under Article 26 of the Act is to compensate within the limit of liability insurance for the damage of the victim who died or was injured due to an accident caused by the operation of a motor vehicle without an insurance policy, with the aim of protecting the victim of a traffic accident caused by a motor vehicle without an insurance policy (see Supreme Court Decision 2004Da35113, Apr. 15, 2005). Considering the content and purpose of the provision, the Guarantee Business operator is obligated to pay compensation to the victim if it is determined an accident caused by the operation of a motor vehicle, for which the Guarantee Business operator entrusted with the affairs concerning the present materials and the Guarantee Business as of the time of payment of compensation is unable to identify the owner of the motor vehicle, and even if it is found after the payment of compensation, it does not mean that the Guarantee Business operator is exempt from the obligation to pay compensation under Article 26(1)1 of the Act.

B. According to the reasoning of the judgment below, the plaintiff is an insurance company entrusted with the duties of the Government's assistance business, and the defendant Eastern Fire Co., Ltd. (hereinafter "Defendant East Fire") is the insurer of the cargo of this case, and the defendant 2, 3, and 4 (hereinafter "Defendant 2, etc.") were the children of the non-party 1 who died due to the accident of this case, and the non-party 2 was the non-party 1 who was employed on the road of this case while driving the cargo of this case on August 28, 2007 due to the negligence of failing to perform his duty of front-time care and caused the death of the non-party 2 as the cargo of this case; the defendant 2 was delegated by the defendant 3 and 4 on October 1, 207 and claimed for the payment of compensation under Article 26 (1) of the Act to the non-party 2 as the first police-related driver of the accident of this case on October 20, 2007.

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

It is clear that at the time when the Plaintiff paid compensation to Defendant 2, etc., Nonparty 2 was already designated as the driver of a sea-going vehicle by the police, and was under investigation. Furthermore, it is difficult to view that the Plaintiff was able to confirm such circumstances according to the materials presented by the Plaintiff, which were presented by Nonparty 2, prior to the Plaintiff’s payment of the compensation in this case, and the police officer entered Nonparty 2 as the suspect on October 9, 2007, and received the suspect interrogation protocol as of October 10, 2007, even if the Plaintiff received the suspect interrogation protocol, based on the materials presented by Nonparty 2, as of October 10, 2007, when paying compensation.

Therefore, it is reasonable to view the instant accident as an accident due to the operation of a motor vehicle for which the owner of the motor vehicle is unknown at the time of payment of compensation, and the Plaintiff, a guarantor, has the obligation to pay compensation to Defendant 2, etc. who is the victim.

Nevertheless, the court below determined otherwise that even if the owner of a melting vehicle at the time of paying compensation to the victim was unknown, it does not constitute an accident by a motor vehicle with unknown identity as long as the owner is found later, and further, on October 10, 2007, before paying compensation to Defendant 2, etc., Nonparty 2 was already designated as the driver of a melting vehicle by the police, and thus, even at the time of paying compensation to the Plaintiff, it cannot be deemed an accident by a motor vehicle with unknown identity even if at the time of paying compensation. The court below rejected the Plaintiff’s assertion in subrogation of the right to claim compensation against Defendant 2, etc. pursuant to Article 31(1) of the Act on the premise that the instant accident was an accident by a motor vehicle with unknown identity of the owner. In so doing, the court below erred by misapprehending the legal principles as to Article 26(1)1 of the Act, which affected the conclusion of the judgment

2. As to the appeal by Defendant 2, etc.

The above Defendants did not submit an appellate brief within the statutory period, and the petition of appeal does not contain any indication in the grounds of appeal.

3. Conclusion

Therefore, without further proceeding to decide on the remainder of the grounds of appeal by the Plaintiff, the part of the judgment below regarding Defendant Dongdong Fire is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. All appeals by Defendant 2, etc. are dismissed, and the costs of appeal by the said Defendants are assessed against the Defendants. It is so decided as per Disposition by the assent

Justices Park Poe-dae (Presiding Justice)