[1] The scope of application of the non-licensed driving exemption clause, and the standard for determining whether a policyholder or the insured's implied approval for the non-licensed driving is "unlicensed approval"

[2] The case holding that the insured or his employee may not be deemed to have granted an implied approval for driving without a license in case where the insured or his employee is driving without a license, even though the first-class driver's license for ordinary vehicles was changed to be able to drive only when the first-class driver's license for ordinary vehicles was granted due to a change in the types of motor vehicles, etc. that can be driven by the person who obtained a driver's license under the amendment of the former Enforcement Rule of the Road Traffic Act [Attachment 14]

[3] The case holding that in case where the insured of the business automobile insurance claims the payment of insurance money without paying the insurance money to the victim after the judgment of compensation with the victim became final and conclusive, the insurer under the terms and conditions of the business automobile insurance has the right to refuse the claim of the insured before the victim receives the compensation from the insured, but the insurer may not refuse the payment of the insurance money if it

[4] Whether the insurer of liability insurance is liable for payment of damages for delay under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings (affirmative with qualification)

[1] Under the insured’s explicit and implied approval, the clause of non-exclusive license to the effect that the driver of an insured motor vehicle shall not compensate for any damage caused by an accident caused by an insured motor vehicle under the insured’s explicit and implied approval shall apply only to the case where the non-exclusive license is made in a situation where the insured or the insured is controlled or managed. In this case, since the implied approval is applied the same as the case of the explicit approval, it shall be limited to the case where there is a circumstance where the approval intention for non-exclusive license is inferred to the same extent as the case in which the intention of approval is explicitly expressed. Whether non-exclusive license was granted under the insured or the insured’s implied approval shall be determined by taking into account various circumstances such as the relationship between the policyholder or the insured and the non-exclusive driver, the situation and purpose of operating the relevant non-exclusive license, the situation and purpose of operating the relevant non-exclusive license, the attitude of the insured or the insured with respect to the non-exclusive license driver, etc., and the application of the clause of non-exclusive license or negligence.

[2] The case holding that the insured or his employee may not be deemed to have granted an implied approval in order for the insured to drive the vehicle without a driver's license in case where the insured or his employee is driving the vehicle without a driver's license even though the first-class driver's license was changed to be able to drive the vehicle due to a change in the type of the vehicle, etc. which can be driven by the person who obtained the driver's license under the amendment of the former Enforcement Rule of the Road Traffic Act [Attachment 14]

[3] The case holding that in case where the insured of a business automobile insurance claims the payment of insurance money without paying the insurance money to the victim after the judgment of compensation with the victim became final and conclusive, the insurer is entitled to refuse the claim of the insured before the victim receives the compensation from the insured, but the insurer may not refuse the payment of the insurance money if it was not renounced or exercised by the insurer

[4] In light of the purport of the provisions of the Motor Vehicle Comprehensive Insurance Policy that stipulate the amount of the insurance amount to be paid to the insured as the amount including delay damages to be paid by the insured by the final judgment, the insurer is liable to pay all the insured, whether it is an original or delay damages, unless there are special circumstances such as unfair damages not legally responsible to the insured.

[1] Articles 659 and 663 of the Commercial Act, Articles 6 and 7 of the Regulation of Standardized Contracts Act / [2] Article 659 of the Commercial Act, Article 26 of the former Enforcement Rule of the Road Traffic Act (amended by Ordinance of the Ministry of Home Affairs No. 651 of July 1, 1995), Article 26 of the former Enforcement Rule of the Road Traffic Act (amended by Ordinance of the Ministry of Home Affairs of July 1, 1995) [Attachment 14] [3] Articles 723 (1), (2), and 724 (1) of the Commercial Act / [4] Articles 719 and 723 (1) of the Commercial Act

[1] Supreme Court en banc Decision 90Meu23899 Decided December 24, 1991 (Gong1992, 652), Supreme Court Decision 98Da42189 Decided November 26, 199 (Gong2000Sang, 25) Supreme Court Decision 99Da66236 Decided May 30, 200 (Gong200Ha, 1526) / [3/4] Supreme Court Decision 94Da17888 Decided September 15, 1995 (Gong195Ha, 3365), Supreme Court Decision 94Da28093 Decided September 26, 1995 (Gong195Ha, 3509) (Gong3509) decided September 25, 1995)

Plaintiff (Attorney Lee Jae-sik, Counsel for the plaintiff-appellant)

Dongyang Fire and Marine Insurance Co., Ltd. (Law Firm Hanun, Attorneys Yu-hee et al., Counsel for the defendant-appellant)

Daegu High Court Decision 9Na2875 delivered on December 10, 1999

The appeal is dismissed. The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

1. Regarding ground of appeal No. 1

In automobile insurance, the clause of non-licensed driving exemption applies only to cases where a non-licensed driving took place in a situation where the policyholder or the insured controls or manages without obtaining a license under the explicit or implied approval of the insured. In such a case, since the implied approval is equally applied to the case where approval is explicitly expressed, it shall be limited to cases where there are circumstances to inferred the approval intention to the same extent as the case where approval for non-licensed driving is explicitly expressed. Whether a non-licensed driving was made under the implied approval of the policyholder or the insured, the relationship between the policyholder or the non-licensed driver and the insured, the situation and purpose of operation enabling the pertinent non-licensed driving, and the attitude of the policyholder or the insured with respect to the driver without a license, etc. (see, e.g., Supreme Court Decision 9Da293696, May 30, 2000).

According to the reasoning of the judgment below, the court below rejected the first-class driver's license insurance company's liability for damages not compensated by the defendant company 1, Paragraph 1, Item 6 of Article 11 of the insurance clauses of this case between the plaintiff and the defendant company, which provided "damage caused by an accident caused by the driver of an insured motor vehicle under the explicit or implied approval of the insured", and the amendment of the Enforcement Rule of the Road Traffic Act before July 1, 1995, where the loading structure is loaded with 11t or less high-pressure gas in the form of loading, etc., if the loading capacity is less than 60% in the capacity of the vehicle's loading capacity, the first-class driver's license can be operated only if it is not known that the first-class driver's license was not available, but only the first-class driver's license was changed to be operated before and after the amendment of the Enforcement Rule of the same case, and the first-class driver's liability insurance company's liability for damages was not known to the plaintiff or the employee of this case.

Examining the relevant evidence in light of the records, although the court below's explanation of its reasoning is somewhat insufficient, the above fact-finding and judgment of the court below are justified, and it cannot be said that there were errors such as misconception of facts due to the violation of the rules of evidence. The allegation in the grounds of appeal is not acceptable.

2. Regarding ground of appeal No. 2

Examining the reasoning of the judgment below, the court below determined that the driver of the insured motor vehicle cannot be deemed to have been driving without a license under the Plaintiff’s explicit and implied approval, and it is clear that the defendant company did not neglect to explain the amendment of the Enforcement Rule of the Road Traffic Act that the driver of the insured motor vehicle should obtain a first-class license if the vehicle exceeds 3t, despite the fact that the defendant company neglected to explain the amendment.

Therefore, the ground of appeal that the lower court erred by misapprehending the legal principles on the duty to explain cannot be accepted without further review.

3. As to the third ground for appeal

Articles 2 and 16 of the Terms and Conditions of Business Automobile Insurance of this case provide that "the insurance money paid by the defendant company shall be the amount calculated according to the payment standards of insurance money, but if a lawsuit has been filed, the insured shall be liable for damages (including damages for delay) by a final and conclusive judgment of the court of the Republic of Korea." Article 18 (1), (2) and (3) of the Terms and Conditions provide that "the insured may claim the payment of insurance money when the amount of damages is determined by the final and conclusive judgment of the court of the Republic of Korea, judicial settlement, arbitration or written agreement, and the defendant company shall without delay determine the insurance money to be paid and pay insurance money within 10 days from the fixed date when the documents or evidence concerning the claim for insurance money submitted by the insured are received," while Article 18 (4) of the Terms and Conditions provide that "the defendant company does not pay all or part of the insurance money before the claim for damages has been paid to the insured, and the insured company, in principle, has no right to refuse the payment of insurance money from the insured before the claim for damages has been paid from the insured.

According to the records, the defendant company did not assert the above right to refuse payment until the closing of argument in the court below. Therefore, the court below is just in holding that the amount to be compensated by a final judgment with the victim, not the amount actually paid to the victim, is the insurance money liable for payment to the defendant company, and there is no error of law such as misconception of facts due to incomplete hearing or misunderstanding of legal principles concerning the payment

In addition, in light of the purport of Articles 2 and 16 of the above Terms and Conditions, the insurer shall be obligated to pay all the insured, regardless of the original or delay damages, unless there are special circumstances, such as that the amount of damages determined by the judgment between the victim and the insured is an unreasonable damage (see, e.g., Supreme Court Decision 94Da17888, Sept. 15, 1995). In light of the records, the part of the damages for delay cited in the final and conclusive judgment between the victim of the instant accident and the bereaved family members of the non-party deceased who are the victim of the instant accident, cannot be deemed as an unfair damage that is not legally responsible to the insured, and therefore, the judgment of the court below to the same purport

The argument in the grounds of appeal cannot be accepted.

4. Therefore, the appeal is dismissed, and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Song Jin-hun (Presiding Justice)