[1] The operator's liability for damages under the Guarantee of Automobile Accident Compensation Act

[2] Requirements and criteria for determining whether a person who was divingd on a motor vehicle in operation falls under "passenger" under Article 3 (2) of the Guarantee of Automobile Accident Compensation Act

[3] In a case where some of the passengers of a tourist bus stopped on an expressway due to a primary accident were driven by the bus and died of the second accident due to the accident caused by the second accident, the case holding that the deceased is a passenger under the proviso of Article 3 (2) of the Guarantee of Automobile Accident Compensation Act on the ground that the deceased did not deviate from the direct risk range of the tourist bus in operation even when the second accident occurred

[1] Article 3 of the Guarantee of Automobile Accident Compensation Act provides that a person who operates a motor vehicle for his/her own sake shall be liable to compensate for damage caused by the death or injury of another person caused by the operation of the motor vehicle, while subparagraph 2 of the proviso provides that a person who is engaged in the operation of the motor vehicle for his/her own sake shall not be liable only when the death or injury caused by the death or injury of the passenger was caused by his/her intentional act or suicide. In cases where the passenger was killed or injured due to an automobile accident, the operator shall be liable to compensate for the damage caused by the death or injury of the passenger without his/her negligence, unless it proves and proves that the death or injury of the passenger was caused by the

[2] The term “passenger” refers to a person boarding a vehicle under the explicit and implied consent of the operator of the vehicle. It does not necessarily mean that only a person inside the vehicle is a passenger, and a person who does not deviate from the direct danger scope of the vehicle in operation even though the vehicle was temporarily set off on the vehicle in operation, also maintains the status of the passenger. Determination of whether a person falls under such cases shall be made in light of social norms, taking into account all the circumstances such as the operator and the passenger’s intent, the background behind the vehicle being set off, the time after the vehicle was set off, the nature of the place where the vehicle stopped and stops, and the relationship between the place

[3] In a case where some of the passengers of a tourist bus stopped on an expressway due to a primary accident were driven by the bus and died of the second accident due to the accident caused by the second accident, the case holding that the deceased is a passenger under the proviso of Article 3 (2) of the Guarantee of Automobile Accident Compensation Act on the ground that the deceased did not deviate from the direct risk range of the tourist bus in operation even at the time of the second accident.

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

[1] Supreme Court Decision 93Da6560 delivered on May 27, 1993 (Gong1993Ha, 1879)

[Plaintiff-Appellee] Insurance Co., Ltd. (former Trade Name: EL Fire Insurance Co., Ltd.) (Attorney Jeong-hee et al., Counsel for plaintiff-appellee)

National Federation of Bus Transport Business Cooperatives (Attorney Ansan-do, Counsel for the plaintiff-appellant)

Seoul High Court Decision 2005Na39473 decided Feb. 10, 2006

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

We examine the grounds of appeal.

Article 3 of the Guarantee of Automobile Accident Compensation Act provides that a person who operates an automobile for himself/herself shall be liable to compensate for the damage caused by the death or injury of another person caused by the operation of the automobile, while subparagraph 2 of the proviso provides that in cases where a passenger is dead or injured, liability shall not be satisfied only when the death or injury was caused by his/her intentional act or suicide. In cases where a passenger was killed or injured due to an automobile accident, the operator shall be liable to compensate for the damage caused by the death or injury of the passenger without any negligence on his/her own unless asserted and proved that the death or injury of the passenger was caused by his/her intentional act or suicide (see Supreme Court Decision 93Da6560 delivered on May 27, 1993).

On the other hand, the proviso of Article 3 (2) of the Act refers to a person boarding a vehicle with the explicit and implied consent of the operator. The above provision aims to have the operator accept the passenger within the direct danger scope of the vehicle without asking the operator of the vehicle to compensate for damages to all passengers including the passenger without compensation and without compensation (see Constitutional Court en banc Decision 96Hun-Ga4, 97Hun-Ga67, 95Hun-Ba58, May 28, 1998). Thus, the person inside the vehicle cannot be deemed as a passenger on board the vehicle, and the person who does not deviate from the direct danger scope of the vehicle, even if the vehicle was temporarily set off on the vehicle in operation, can maintain the status of the passenger. The determination of whether the vehicle falls under such provision should comprehensively take into account the intention of the operator and the passenger, the circumstances leading up to the vehicle's getting off and getting off, the location and time of the vehicle in operation, the relation between the vehicle and the vehicle's stopping and stopping.

Examining the record of this case in light of the above legal principles, the court below’s determination that the deceased was no longer in the status of passengers beyond the control scope of the operator of the above bus as at the time of the second accident is acceptable for the following reasons.

First of all, according to the facts acknowledged by the court below, the non-party who is the operator of a tourist bus, even after the first accident, stopped the above bus on the side of the expressway, and did not inform the deceased et al. of the occurrence of the accident or continuous waiting inside the bus through the internal broadcast to control the accident, etc., and in order to take into account some of passengers including the deceased et al., left the bus, and sent a signal to the side after the bus, or shared a talk with them. According to the records, the non-party, who is the operator of the tourist bus, was still waiting in the bus after the first accident, and some of the passengers, etc., including the deceased et al., were stopped on the bus after the first accident, but after the accident management, they seem to be boarding the bus and leaving the bus at the seat of the deceased et al., and it seems that the two passenger et al., who were scheduled to board the bus at the time of the accident after the accident management, seems to have been in the second bus's scheduled condition.

Nevertheless, on the premise that the deceased et al. are no longer passengers of tourist buses, the lower court deemed that there was no negligence in relation to the occurrence of the second accident against the deceased et al., the owner of the tourist bus, or the non-party who is the driver, and determined that the use of the second accident was not legally responsible under the Guarantee of Automobile Accident Compensation Act for the deceased et al. in relation to the said second accident. In so doing, the lower court erred by misapprehending the legal doctrine as to the interpretation of the proviso of Article 3(2) of the Guarantee of Automobile Accident Compensation Act.

Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Hong-hoon (Presiding Justice)