[1] The legal nature of the criminal agreement that was paid without clearly stating that it is consolation money

[2] Whether the amount of criminal agreement having the character of property damage is included in the scope of damage to be compensated by the insurer (affirmative)

[1] In the course of the investigation or criminal trial against the perpetrator of the illegal act, where the victim agreed that the perpetrator would not be punished for the perpetrator, it shall be deemed that the amount was paid as part of the compensation for damages (property damage) unless there are circumstances such as clearly stating that the amount received at the time of the agreement is paid as consolation money, etc.

[2] The amount of criminal agreement having the character of property damage has been paid as compensation for "damage caused by the death or injury caused by the operation of the motor vehicle vehicle due to the occurrence of the accident" stipulated in the terms and conditions of the automobile comprehensive insurance, and even if there was a criminal agreement for the purpose of payment in order to obtain a declaration of intent not to have criminal punishment, the circumstance does not change. Thus, the insurer is liable to pay the insured the amount equivalent to the amount of the criminal agreement paid as the insurance money according to the insurance contract.

[1] Articles 393 and 763 of the Civil Act / [2] Article 726-2 of the Commercial Act

[1] Supreme Court Decision 91Da18712 delivered on August 13, 1991 (Gong1991, 2357), Supreme Court Decision 94Da14018 delivered on October 14, 1994 (Gong1994Ha, 2978), Supreme Court Decision 95Da8850 delivered on July 11, 1995 (Gong195Ha, 2755)

Plaintiff (Attorney Kim Jong-soo, Counsel for the plaintiff-appellant)

Dongbu Fire Marine Insurance Co., Ltd. (Attorneys Jeon Jae-in et al., Counsel for the plaintiff-appellant)

Seoul District Court Decision 95Na34520 delivered on November 14, 1995

The judgment below is reversed. The case is remanded to the Seoul District Court Panel Division.

The grounds of appeal are examined.

According to the reasoning of the judgment of the court below, the court below acknowledged that the plaintiff entered into a comprehensive automobile insurance contract with the defendant on April 25, 1994 with the insurance period from April 25, 1994 to April 25, 1995 with respect to the automobile owned by the defendant. The plaintiff driving the above vehicle around January 20, 1995, and caused the death of the non-party Kim Jong-yang. The plaintiff entered into the criminal punishment agreement with the above deceased on February 11, 1995, and paid KRW 10,00,000 to the non-party Lee Young-ro, the deceased's children, under the above insurance contract, for the plaintiff's claim for payment of insurance money equivalent to the above amount, Eul, a comprehensive insurance clause between the plaintiff and the defendant, and the defendant company did not have any criminal liability against the plaintiff for damages caused by the plaintiff's death or injury caused by the accident. According to the evidence No. 1, the defendant company, the insured, as the defendant's criminal liability for damages.

However, it is reasonable to view that the amount was paid as part of damages (property damages) unless there are circumstances such as clearly stating that the amount received as consolation money was paid in the course of investigation or criminal trial against the perpetrator, and that the victim did not receive the amount under the pretext of the agreement from the perpetrator, and that the amount was paid as part of the compensation for damages (property damages) (see Supreme Court Decisions 87Meu313, May 24, 198; 91Da18712, August 13, 1991; 94Da14018, Oct. 14, 1994; 95Da850, Jul. 11, 1995; 95Da8850, Oct. 15, 1995). Accordingly, the court below rejected the Plaintiff’s claim for compensation for damages under the so-called “the above agreement to be paid as part of the compensation for damages (property damages)” under the law, unless there are any special circumstances.

Therefore, the judgment 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.

Justices Park Jong-chul (Presiding Justice)