[1] The method of determining whether an owner of an automobile loses his/her operating control and operation profit in cases where a third party is damaged by a passenger who caused an accident while driving without permission

[2] Whether it can be determined that an owner of an automobile lost his/her operating control and operation interest solely because the victim, without compensation, was involved or was aware of such participation in the operation without permission (negative)

[1] Even if a third party caused an accident while driving a motor vehicle without permission, the owner of the motor vehicle bears the responsibility for the accident as an operator under Article 3 of the Guarantee of Automobile Accident Compensation Act in the absence of special circumstances to deem that the control of the owner's operation and the profits from operation were completely lost. Whether the loss of the control and the profits from operation is an important element to determine the loss of the driver's operation control and the profits from operation according to ordinary social norms, such as the situation of keeping and managing the motor vehicle or its keys, the situation in which the operation is possible regardless of the owner's intent, the personal relationship between the owner and the driver, the driver's intent to return the motor vehicle, the possibility of the owner's consent after the unauthorized Operation, the existence of the victim's subjective perception about the unauthorized Operation. In particular, if the victim free of charge is involved in the driver's operation of the motor vehicle, the existence of the owner's knowledge of the unauthorized Operation

[2] Even if a free passenger, who is the victim, took part in or was aware of the driver's illegal operation at the time of the accident, there are circumstances that may harm the driver's unauthorized operation in light of the circumstances of operation or purpose of operation, or circumstances where the unauthorized operation is substantially closely related to the driver's ordinary duties and thus, it cannot be readily concluded that the owner has entirely lost the driver's control or the profit of operation.

[1] Article 3 of the Guarantee of Automobile Accident Compensation Act / [2] Article 3 of the Guarantee of Automobile Accident Compensation Act

[1] [2] Supreme Court Decision 94Da9085 delivered on September 23, 1994 (Gong1994Ha, 2794), Supreme Court Decision 94Da21856 delivered on February 17, 1995 (Gong1995Sang, 1408) / [1] Supreme Court Decision 92Da6365 delivered on May 12, 1992 (Gong1992, 1853 delivered on July 13, 1993 (Gong193Ha, 2243), Supreme Court Decision 94Da41232 delivered on February 24, 1995 (Gong195Sang, 1436)

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

Defendant

Seoul High Court Decision 95Na25437 delivered on February 6, 1996

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal by the attorney are examined.

1. According to the reasoning of the judgment of the court below, the non-party 1 was aware of the above vehicle's key to the non-party 1's above vehicle's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 9's non-party 1's non-party 1's non-party 1's non-party 4's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 4's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's.

2. However, we cannot agree with the above fact-finding and determination by the court below.

Even if a third party was involved in an accident while driving his/her motor vehicle without permission, the owner of the motor vehicle shall be held liable for the accident as an operator under Article 3 of the Guarantee of Automobile Accident Compensation Act in the absence of special circumstances in which it is deemed that the owner’s control of operation and the profits from operation were completely lost in its operation. Whether the driver’s control and the profits from operation are lost or not shall be determined by comprehensively assessing and assessing all objective and external circumstances in accordance with social norms, such as (i) the state of custody and management of the motor vehicle or its keys; (ii) the situation in which the operation is possible regardless of the owner’s intent; (iii) the personal relationship between the owner and the driver; (iv) the driver’s intent to return the motor vehicle; (iv) the possibility of the owner’s consent after the unauthorized Operation; and (v) the existence of the victim’s subjective perception of the unauthorized Operation without permission if the victim is a driver’s free of charge (see Supreme Court Decision 94Da9085, Sept. 23, 1994).

However, the court below determined that it was difficult to view that the above non-party 1 was aware that the vehicle was owned by the above bank when the defendant was playing along with the above non-party 1, but it was not known that the above non-party 1 was operating the vehicle without permission against the above bank's intent. However, even according to the statement of Gap No. 7 (O.S. No. 7, which was admitted as evidence of fact-finding by the court below, the defendant was aware on October 20, 194, after the accident of this case, that the plaintiff's questioning on the plaintiff's boarding of the vehicle of this case was known to the head of the bank's branch, and it was not thought that the above non-party 1 was operating the vehicle of this case without permission. In light of the records, it was reasonable to view that the defendant already known that the non-party 1 was operating the above non-party 1's occupation, namely, the above non-party 1's non-party 1 was operating the vehicle of this case.

In addition, if the defendant knew that the car was operated without permission, in light of the circumstance and purpose of getting on the car of this case, and the relationship with the above non-party 1, it is reasonable to view that the above bank as the owner of the car of this case lost its operating control or operating profit of this case at the time of the accident of this case.

Nevertheless, the court below determined that the above bank did not lose its operating control or operating profit of the passenger vehicle of this case on the premise that the defendant did not know of the unauthorized operation of the vehicle of this case. The court below did not err by misunderstanding the facts contrary to the rules of evidence, or by misapprehending the legal principles as to the operator's operating control or loss of operating profit, or by misapprehending the legal principles as to the remaining decision that affected the conclusion of the judgment. The ground of appeal

However, even if a free passenger, who is the victim, took part in a driver's unauthorized operation or was aware of it at the time of the accident, there are circumstances that may harm the owner's unauthorized operation in light of the circumstances and purpose of the operation and the purpose of the operation, or where the unauthorized operation is in fact closely related to the driver's ordinary duties and thus it cannot be entirely ruled that the owner has entirely lost the driver's control or the operational interest (see the above Supreme Court Decision 2009Da15488, May 1, 2009). Thus, the court below should further examine whether the owner could not be determined to have entirely lost the driver's control or the operational interest despite the defendant's awareness of the above non-party 1's unauthorized operation without permission.

3. Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Yong-hun (Presiding Justice)