(a) Whether the automobile repairer falls under the category of “person who operates an automobile for his own sake” as prescribed in Article 3 of the Guarantee of Automobile Accident Compensation Act, and the criteria for determining whether the automobile repairer has lost his control and operational profit when the accident occurred due to his employee’s unauthorized driving;

B. Whether it is readily concluded that a free passenger, who was the victim, was involved in or was aware of the unauthorized operation of a motor vehicle, has lost operational control or operational profit

(c) The case holding that an employee's unauthorized operation of an automobile repairer completely deviates from the scope of his operational control and operational profit;

A. A request for repair of a motor vehicle is made to a motor vehicle repair business operator for any operation related to the repair of a motor vehicle. The right to control the operation of a motor vehicle during the repair period is entrusted to a repair business operator within the scope necessary for repair or trial operation. As to an accident caused by an employee in the course of driving a motor vehicle entrusted for repair, the repair business operator shall be liable for damages as the "person who operates a motor vehicle for his/her own sake" under Article 3 of the Guarantee of Automobile Accident Compensation Act. However, in special circumstances where it is deemed that the operator completely lost his/her operational control and operational profit, it should be viewed differently. Whether the operation control and operating profit have been lost should be determined by comprehensively assessing various objective and external circumstances, such as the situation in which the operation is possible regardless of the owner's intention, the personal relationship between the owner and the driver, the driver's intention to return the motor vehicle, the possibility of consent of the owner after without permission, and the victim's subjective perception about the operation without permission. In particular, if the victim lost his/her operating profit without permission or without permission, it should be determined in consideration.

B. Even if a free passenger took part in a driver’s unauthorized operation or was aware of it at the time of the accident, it cannot be readily concluded that the operation control or the profit of operation of a motor vehicle was entirely lost solely on the ground that there are circumstances that may harm the driver’s unauthorized operation in light of the circumstances of operation or purpose of operation, or that the unauthorized operation is closely related to the driver’s ordinary duties and thus, it cannot be entirely ruled out that the free passenger took part in the unauthorized operation or was aware of it.

C. The case holding that it is reasonable to view that the operation of the above vehicle was in a state of completely deviating from the scope of the driver's control and the profit of operation, at least in relation to the victim at the time of the accident, even if considering the following factors: (a) an employee of the automobile repairer, regardless of any connection with the repair business, was used without permission for the victim, who is a senior employee of the above employee, after the business hours, used the vehicle without permission for the purpose of burning the vehicle; (b) the above employee forced to keep the vehicle in a book, and forced the vehicle to cut the vehicle without permission; and (c) the victim was also aware of the fact that the vehicle was operated by the above employee in an abnormal manner as above; and (d) when considering the situation that the vehicle was operated in the above abnormal manner, even if considering the victim's age and status status; and (d) the temporary intention to return the vehicle and the status of the employee's operation

Article 3 of the Guarantee of Automobile Accident Compensation Act

A. (B) Supreme Court Decision 84Meu858 Decided November 27, 1984 (Gong1985,74) (Gong1985,74) 88Da2134 Decided March 28, 1989 (Gong1989,670) (Gong1994Ha, 2794) Decided September 23, 1994 (Gong1994, 2794). Supreme Court Decision 87Da1585 Decided June 14, 1988 (Gong198, 1022) 92Da41733 (Gong193, 243) Decided July 13, 1993

Plaintiff 1 et al., Counsel for the defendant-appellant

Lee Jong-sung et al., Counsel for the defendant-appellant

Seoul High Court Decision 93Na25143 delivered on March 24, 1994

The part of the judgment below against the defendant is reversed and that part of the case is remanded to the Seoul High Court.

The defendant's attorney's grounds of appeal are examined.

1. According to the reasoning of the lower judgment, the lower court determined on October 5, 191 that Nonparty 1 was running without permission by Nonparty 1, who was in custody of Nonparty 1’s key to the above vehicle without permission, and caused the above Plaintiff to suffer from the strings of the right-hands in the road while driving the vehicle. The lower court held that it was difficult for the Defendant to use the vehicle without permission to repair the vehicle at the time of the above 1strings of the vehicle without permission, and that it was difficult for the Defendant to use the vehicle at the time of the above 1strings of the vehicle without permission by inserting the vehicle’s key to the above 1strings of the vehicle without permission, and that the vehicle’s key to the 1strings of the above 1strings of the vehicle without permission, and that it was difficult for the Defendant to use the vehicle to repair the vehicle at the time of the above 1strings of the vehicle without permission, and that it was difficult for the Defendant to use the vehicle at the time of the above 1strings of the vehicle.

2. Generally entrusting the repair of a motor vehicle to a motor vehicle repair business operator for any operation related to the repair of the motor vehicle. Since the operation control during the repair period includes any operation within the scope necessary for the repair or the trial operation, the right to control the operation of the motor vehicle is entrusted to a repair business operator. If an accident occurred while an employee is driving a motor vehicle entrusted for repair, the repair business operator shall be liable for damages as a person who operates the motor vehicle for himself/herself under Article 3 of the Guarantee of Automobile Accident Compensation Act (see, e.g., Supreme Court Decisions 87Meu1585, Jun. 14, 198; 87Meu49, Jul. 7, 1987). However, if there are special circumstances to deem that the driver completely lost his/her operation control and operation profit, it shall be determined differently. The determination of whether the driver control and operation profit have been lost shall be made 97Da19849, Mar. 19, 197 without permission or not. 209.

In this case, according to the testimony of Non-Party 1, witness of the first instance court and witness of Non-Party 1 and witness of the court below, the defendant resides in the second floor in the building at his domicile, and Non-Party 1, an employee of the above repair business, sleeps in the room located within the above repair business, and sleeps in the daily exchange or assistance in the automobile repair business. Non-Party 1, who knows that Non-Party 1 was 17 years old and does not have a driver's license, sleeps in the vehicle at his repair business site and 21:0 years old and later, after the above 21:0 years old, the slicks of the above repair business site were put into the front slick on the metal 1st century, and it was evident that Non-Party 1 would not drive the above slick slick on the road of this case without permission. Even on the day of the accident, the defendant did not have a duty to report the vehicle's key to the plaintiff 1's vehicle.

Of course, even if the passenger took part in the driver's unauthorized operation or was aware of it at the time of the accident, it cannot be readily concluded that the driver's unauthorized operation of the vehicle was completely deprived of the driver's operating control or operating profit of the vehicle, on the ground that there are circumstances likely to harm the driver's unauthorized operation in light of its operational situation or purpose, or that the unauthorized operation was closely related to the driver's ordinary duty, and thus, it cannot be entirely ruled that the driver's unauthorized operation of the vehicle without permission took part in the driver's license or was aware of it. However, in this case, the purpose of Non-party 1's unauthorized operation of the vehicle after its business hours without any relation to the defendant company's business, and Non-party 1 took part in the driver's unauthorized operation of the vehicle without permission, and it was committed to drive the vehicle after opening his keys to the driver's license without permission, and at least the plaintiff 1 took the vehicle's temporary operation of the vehicle without permission after being aware of the victim's age and non-party 1's age.

Nevertheless, the court below acknowledged that the management of the vehicle of this case was entrusted to Nonparty 1 even after the business hours and the custody of key was neglected, and rejected the defendant's defense of immunity. Therefore, the court below erred in the misapprehension of the legal principles as to the vehicle operator under Article 3 of the Guarantee of Automobile Accident Compensation Act, and in the misapprehension of the rules of evidence by violating the rules of evidence, and it is obvious that this affected the conclusion of the judgment. Therefore, it is reasonable to point this out.

3. Therefore, the part of the judgment below against the defendant's failure shall be reversed, and the case shall be remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Chocheon-sung (Presiding Justice)