National Freight Trucking Federation (Attorney So-young, Counsel for defendant-appellant)

Defendant (Attorney Soh-young et al., Counsel for defendant-appellant)

August 25, 2010

Changwon District Court Decision 2009Kadan18539 Decided April 1, 2010

1. The defendant's appeal is dismissed.

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

The defendant shall pay to the plaintiff 42,670,00 won with 5% interest per annum from June 18, 2008 to the service date of a copy of the complaint of this case, and 20% interest per annum from the next day to the day of complete payment.

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Basic facts

A. Conclusion of the instant mutual aid contract

On October 25, 2006, the Plaintiff, a corporation established to carry on a mutual aid business under the Trucking Transport Business Act, concluded a mutual aid agreement (hereinafter “instant mutual aid agreement”) between Jinsan Transportation Co., Ltd. (hereinafter “Jinsan Transportation”) and its owner (vehicle registration number omitted) with respect to the truck (hereinafter “instant vehicle”).

B. Occurrence of the instant accident and payment of compensation to the Defendant

1) The Defendant leased the instant vehicle from Jinsan Transportation to Nonparty 1, a driving engineer, in order to transfer the pump, which is the material used at the site, to another place after completing the said construction work, as a construction business operator receiving a contract for the fry, steel bars, and ready-mixed snow parts of the construction at the sewage terminal at the time of Jinju from a limited liability company.

2) On October 19, 2007, the defendant and the non-party 1, 2007, when they walked on the erop of the erop of about 4 meters high water to the erop of the erop to the erop of the erop, the non-party 1, while the non-party 1 operated the erop by manipulating the erop and loaded the erop to the erop of the erop to the erop to the erop to the erop to the erop to the erop to the erop to the erop to the erop.

3) However, in the course of the Plaintiff’s investigation for the payment of mutual aid money, the Defendant stated to the Plaintiff that “the Defendant leased the instant vehicle to Nonparty 2, who was a pro rata, and the Defendant was employed by Nonparty 2 and was engaged in work in accordance with the instructions.”

4) Based on the Defendant’s above statement, the Plaintiff: (a) deemed the Defendant’s injury grade as Class 1 attached Table 1 of the Enforcement Decree of the Guarantee of Automobile Accident Compensation Act (hereinafter “The Automobile Accident Compensation Act”); (b) deemed the Defendant’s injury grade as Class 11 attached Table 2 attached to the Enforcement Decree of the same Act; and (c) paid the Defendant KRW 67,890,000 in total as the Defendant’s injury grade as Class 1 compensation for the said accident; and (d) paid the Defendant KRW 25,220,000 in the personal injury grade as Class 1 attached Table 2 of the same Enforcement Decree.

C. Details of the terms of this case

On the other hand, the Plaintiff’s automobile mutual aid agreement applicable to the instant mutual aid agreement (hereinafter “instant terms”) stipulates as follows with respect to the damages not compensated by the Plaintiff.

(c) In the case of a person who operates a mutual aid contract with the permission of the non-member, or his parents, spouse, and children (hereinafter referred to as the "member of mutual aid agreement"). This provision is referred to as the "instant exemption clause".

[Ground of recognition] Facts without dispute, Gap 1 to 4 evidence, Gap 14 to 17 evidence, Eul 1 evidence (including each number), the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff's assertion

The Defendant suffered injury due to the accident of this case constitutes a consent partner whose terms and conditions of this case are stipulated as reasons for exemption from personal compensation II as long as he/she used the transport of oil pumps after leasing the instant vehicle from the Jinsan Transportation at the time of the accident. Thus, the Plaintiff is not liable for paying mutual aid money to the Defendant. Accordingly, the Defendant is liable for paying compensation corresponding to compensation Class II unfairly paid and compensation for delay.

B. Defendant’s assertion

1) The Defendant cannot be deemed to fall under the consent partner stipulated in the terms and conditions of this case, and further, the Defendant, who is merely a vehicle lessee, included the Defendant in the above consent partner, claiming the exemption from liability in violation of the good faith principle.

2) The exemption clause in the instant case where the Plaintiff does not compensate for the difference between the consenting partner and the Plaintiff should be interpreted by limiting the exemption from liability only when it appears that the operating control and operating profit of the consenting partner would have been more led or directly and specifically expressed than that of the nominal partner, and that the consenting partner could have easily prevented the occurrence of an accident. In the absence of such interpretation, the exemption clause in the instant case is against the prohibition of disadvantageous change by the policyholders, etc. under Article 663 of the Commercial Act, as well as against Articles 6 and 7 of the Regulation of Standardized Contracts Act.

3) Even if the Defendant is a consent partner, the Plaintiff is a party to a motor vehicle mutual aid agreement with Jinsan Transportation, and Jinsan Transportation is employing Nonparty 1 and gaining operational profits controlling the operation of the instant motor vehicle. The operation of the instant motor vehicle was entirely responsible for Jinsan Transportation and Nonparty 1’s employees, and even if Nonparty 1 paid a little amount of attention, the instant accident did not occur. Thus, the Defendant constitutes the status of “a third party,” which was damaged by the instant accident under the Private Ship Act, and thus, the Plaintiff is liable to pay compensation to the Defendant, who was damaged by the instant accident.

4) Since the Defendant’s disability grade due to the instant accident falls under class 9 of the Enforcement Decree of the Self-Support Act (Attachment Table 2), the Defendant’s disability grade I’s compensation to be paid to the Defendant is KRW 42,500,000, not KRW 25,220,000, and the Defendant’s unjust enrichment to be returned to the Plaintiff is the amount that the Plaintiff claimed that the Defendant would have been additionally paid to the Defendant from KRW 42,670,00, which is the amount that the Plaintiff claimed that the Defendant would have been paid to the Plaintiff, KRW 17,280,00 (= KRW 42,50,000, KRW 25,220,000), which is the amount that the Defendant would have paid to the Defendant as the compensation for personal injury Class II, is limited to KRW 25

3. Determination

A. Whether the defendant consented partner

In full view of the following circumstances revealed by the purport of the above fact-finding and the entire pleading, namely, the defendant used the present vehicle by linking the Jinsan Transportation, which is one of its members, for the transport of construction materials (loaks) for the present vehicle. The defendant agreed to pay the price equivalent to the rent, leased the present vehicle with Nonparty 1, who is a driver from Jinsan Transportation, and the non-party 1, who is the driver of the present vehicle, has performed the role of operating the crane so that the defendant can load the oil pumps according to the defendant's instruction, it is reasonable to deem that the defendant is a partner of the present terms and conditions, and such interpretation is contrary to the principle of good faith.

Therefore, this part of the plaintiff's argument is with merit, and the defendant's argument against it is without merit.

B. Whether the exemption clause of this case is invalid

On the other hand, the meaning of the exemption clause of this case is interpreted more strictly than operational control or operational profit, which is the standard of judgment of operator under the law, and there is no reason to interpret it as limited only when the consent partner has more leading, direct or specific operational control or operational profit than the registered member. Unlike personal compensation I, the purpose of the exemption clause is to compensate for the damages to be borne by the mutual aid member rather than the protection of the victim. In light of social norms, it is reasonable to not claim damages from the registered member in case of an accident. In light of the above, the exemption clause of this case constitutes "a special agreement between the Plaintiff or the insured or the beneficiary" in violation of Article 663 of the Commercial Act, or it is difficult to consider that the exemption clause of this case constitutes "a provision that unreasonably limits or unfairly limits the rights of the enterpriser to the contract to the extent that it is difficult for the consent partner to exercise the rights of the enterpriser to the extent that it does not conform to the terms or conditions of the contract or to the reason that it is difficult for the consent partner to exercise the rights of the enterpriser."

Therefore, the defendant's assertion on this part is without merit.

C. Whether the defendant's defendant's responsibility for recognizing another person's identity under the Private Sector Act is attributable to the plaintiff

However, even if the defendant can assert that the non-party 1 and the non-party 1, who is the driver of the vehicle of this case, were more led, directly, and specifically involved in the operation of the vehicle of this case compared to the defendant, the non-party 1 and the non-party 1 and the non-party 1 can assert that the non-party 1 and the non-party 1 are others provided for in Article 3 of the Voluntary Employment Act, as seen above, insofar as the defendant is a partner of the agreement of this case, the plaintiff is not liable to compensate for the damage to the non-party 2, the damage exceeding the personal compensation I

Therefore, the defendant's assertion on this part is without merit.

D. The scope of the Defendant’s unjust enrichment return

On the other hand, there is no evidence to acknowledge that the Defendant’s post-paid disability grade falls under class 9 rather than class 10 of class 11 of attached Table 2 of the Enforcement Decree of the Self-Support Act. Therefore, this part of the Defendant’s assertion is without merit.

Therefore, pursuant to the exemption clause of this case, the Plaintiff is not liable for compensating for the damages to the Defendant, which exceeds the personal compensation I, among the damages suffered by the Defendant due to the accident of this case. Ultimately, the Defendant is obligated to pay the Plaintiff the amount of 42,670,000 won, which falls under the personal compensation II, as compensation, and the Defendant received benefits without any legal cause. As such, the Defendant is obligated to refund to the Plaintiff the amount of unjust enrichment of this case 42,670,000 won and the damages for delay calculated at the rate of 5% per annum as stipulated in the Civil Act from June 18, 2008 until the delivery date of a duplicate of the complaint of this case from January 4, 2010 until the delivery date of a copy of the complaint of this case, and 20% per annum as stipulated in the Act on Special Cases Concerning the Promotion,

4. Conclusion

Therefore, the plaintiff's claim of this case is justified, and the judgment of the court of first instance is just, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.

Judges Kim Hong-il (Presiding Judge)