Samsung Fire and Marine Insurance Co., Ltd. (Law Firm Han, Attorney Kim Jong-hwan, Counsel for defendant-appellant)

Hyundai Marine Fire Insurance Co., Ltd. (Law Firm Cheongju, Attorneys Dong Dong-dong et al., Counsel for the plaintiff-appellant)

December 22, 2016

Seoul Central District Court Decision 2015 Ghana576896 Decided June 2, 2016

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

The defendant shall pay to the plaintiff 1,365,530 won with 5% interest per annum from November 1, 2015 to the service date of a copy of the complaint of this case, and 15% interest per annum from the next day to the day of complete payment.

2. Purport of appeal

The part against the defendant in the judgment of the first instance shall be revoked, and the plaintiff's claim corresponding to the revoked part shall be dismissed.

1. Facts of recognition;

A. With respect to the Plaintiff’s vehicle (number 1 omitted) (hereinafter “Plaintiff’s vehicle”), the Defendant is an insurer who has concluded each automobile insurance contract with respect to (vehicle number 2 omitted) vehicles (hereinafter “Defendant’s vehicle”).

B. On March 30, 2014, around 23:46, the Plaintiff’s vehicle reported to the left of the crosswalk in the direction of the 223rd road in front of the Changjin Elementary School and the Home Pluter, which was an ideology of Busan, and stopped on the crosswalk. The Defendant’s vehicle, who was making a left turn to the left in the direction of the Home Pluter, found the left turn to the left of the Plaintiff’s vehicle in the direction of the bend direction, followed the left part of the Defendant’s vehicle with the front part of the left part of the Defendant’s vehicle (hereinafter “instant accident”).

C. After paying KRW 2,028,840 as insurance money with respect to the foregoing accident, the Defendant filed a petition with the Plaintiff for deliberation. On August 17, 2015, the Deliberation Committee recognized the Plaintiff’s fault ratio of the Plaintiff’s vehicle in the instant accident as 30%. On September 3, 2015, the Defendant corrected the deliberated amount to KRW 1,365,530, which is the amount equivalent to the victim’s medical expenses out of the insurance money the Defendant paid. The said determination was deemed to have been served on the Plaintiff on August 27, 2015, when 10 days elapsed from the date of deliberation pursuant to Article 26(4) of the Enforcement Rules of the Mutual Agreement on the Deliberation of the Claim for Compensation for Automobile Insurance (hereinafter “instant Agreement”).

D. On October 30, 2015, the Plaintiff paid KRW 1,365,530 to the Defendant according to the above decision, and filed the instant lawsuit on December 31, 2015.

[Ground of recognition] Unsatisfy, Gap evidence 1 to 5, Eul evidence 1 to 3, 5 to 7, the purport of the whole pleadings

2. Determination on the defense prior to the merits

A. According to Articles 27 through 28 of the Agreement, the defendant asserts that "the decision of the Deliberative Committee shall be confirmed if the petitioner or respondent fails to make a request for reexamination or file a lawsuit within 14 days from the date of receipt of notice of decision of the Deliberative Committee, and if the decision of the Deliberative Committee is confirmed, it shall be deemed that the agreement with the petitioner and respondent on the same contents as the order of mediation that became final and conclusive, has the same effect as that of the final and conclusive mediation decision." Thus, the lawsuit of this case is unlawful, since it was filed 1

B. The main contents of the instant agreement and its enforcement rules are as follows.

(1) Article 1 (Purpose) of this Agreement shall aim at the reasonable and economic settlement of disputes arising between insurers or mutual aid business operators with respect to the existence or non-performance of liability as stipulated in the Guarantee of Automobile Accident Compensation Act, etc., for the same period of time as that of the Deliberative Committee. (1) All agreements, participating organizations, and agreements shall be subject to the application of this Agreement and the Code, and shall be subject to obligation to comply with such determination. (1) The Deliberative Committee shall be established to mediate and resolve disputes regarding the concept of agreement between the companies. (2) The procedures for the settlement of disputes under this Agreement shall be initiated by the request for the Deliberative Committee for deliberation on the same period of time as that of the decision of the Deliberative Committee. (2) The procedures for the settlement of disputes may be, within the fixed period of time from the date on which the second decision of the Deliberative Committee has become final and conclusive, by specifying the respondent. (3) The method of requesting for deliberation, cost and other necessary matters for the settlement of disputes shall be determined by the Ordinance of the Deliberative Committee without delay from the date on which the request for adjudication becomes final and conclusive.

According to the form and text of the agreement above, both the claimant and the respondent in the deliberation on the dispute of indemnity may institute a lawsuit against the decision of the deliberative committee on the dispute of indemnity. However, in the case of the claimant, "within 14 days from the date of receipt of notice of the decision," it is interpreted that the period of the lawsuit does not apply to the respondent, unlike the claimant, and even if the respondent's claim for return of unjust enrichment is restricted by the period of the lawsuit, the respondent does not have any provision prohibiting the filing of the lawsuit itself when the decision of the deliberative committee becomes final and conclusive. Rather, in the case of the respondent's failure to implement the decision of the deliberative committee on the dispute of indemnity which became final and conclusive under the agreement of this case, it is inevitable to institute a lawsuit in order to acquire the title of the lawsuit, and if the decision of the deliberative committee is made on the same amount of indemnity without any justifiable reason, it is difficult to view that all the parties can institute a lawsuit even if the decision of the deliberative committee becomes final and conclusive, in light of the agreement and new rules on the claim of indemnity between the defendant."

3. Judgment on the merits

A. Summary of the parties' assertion

1) The Plaintiff: At the time of the instant accident, the Plaintiff’s vehicle could not be deemed as having discovered and temporarily suspended the crossing at the crosswalk installed at the entrance of the road in the direction to which pedestrians want to make a left-hand turn and left-hand turn. Therefore, the Plaintiff’s 1,365,530 won paid according to the decision of the Deliberation Committee shall be returned since the Defendant took advantage of the benefits without any legal cause.

2) Defendant: As the decision of the Deliberation Committee became final and conclusive, it shall be deemed that a compromise contract has been established under the Civil Act with the contents such as the order of the decision, so KRW 1,365,530 paid by the Plaintiff according to the decision of the above Deliberation Committee is a legal cause and therefore there is no reason

B. Determination

1) Article 26(2) of the instant Agreement provides that “The respondent may file a lawsuit, etc. as to a dispute over recourse, such as filing a lawsuit claiming restitution of unjust enrichment, after performing the same obligation as the order of the Deliberation Committee for Mediation.” This does not recognize the legal relationship between the parties to the decision of the Deliberation Committee for Mediation of a Dispute over Claims under the instant Claims for Reimbursement Agreement as a final determination of the legal relationship between the parties, but rather actively acknowledges that the legal relationship between the parties can be asserted as a means of ordinary legal action, such as a lawsuit claiming restitution of unjust enrichment. Therefore, even if money has been paid in accordance with the aforementioned decision of mediation in accordance with the aforementioned decision of mediation, it cannot be deemed as being arising from legal cause (see Supreme Court Decision 2010Da91114, Jan. 27, 20

2) In light of the developments leading up to the instant accident, the location of the accident, the collision level of both vehicles, and the degree of shock, etc., as to the instant case, the driver of the Defendant’s vehicle neglected his duty to safely drive the vehicle by entering the front and left-hand turn at the T-type intersection where there is no signal signal, while the vehicle’s driver neglected his duty to safely drive the vehicle on the movement of the Plaintiff’s vehicle and the crosswalk installed on the front and left-hand side, while it is difficult to recognize that there is any negligence on the part of the driver of the Plaintiff vehicle. Therefore, the instant accident solely occurred by the driver of the Defendant’s vehicle. Therefore, since the Plaintiff paid KRW 1,365,530 to the Defendant without any legal cause, the Defendant is liable to pay the above KRW 1,365,530 as unjust enrichment and delay damages.

4. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted on the grounds of its reasoning, and the judgment of the court of first instance shall order the payment of less than the above amount recognized, so it is unfair, but the judgment of the court of first instance cannot be modified disadvantageously to the defendant under the principle of prohibition of disadvantageous alteration in this case which only the defendant appealed, and it is so decided as per Disposition.

Judges Cho Jong-hee (Presiding Judge)