[1] Whether transferring the right of the insured, etc. to the insurer against the third party is null and void in violation of the first sentence of Article 729 of the Commercial Act or the provisions of the insurance contract stipulating the prohibition and renunciation of subrogation by the insurer (negative in principle

[2] The scope of direct claim prohibited by Article 32 of the Guarantee of Automobile Accident Compensation Act

[3] In a case where an insurer who has paid insurance money to a beneficiary under a circumstance where the location of liability for a traffic accident is unclear and the beneficiary received damages from the insurer of a vehicle causing a traffic accident, and the insurer entered into a contract to obtain a transfer of a considerable amount of the insurance money out of the above damage claim by means of security of claim for return of unjust enrichment equivalent to the insurance money already paid, or by means of repayment, the case holding that the claim may be transferred without violating Article 32 of the Guarantee of Automobile Accident Compensation Act with respect to the remainder which remains after

[1] The first sentence of Article 729 of the Commercial Act or the provision of an insurance policy that prohibits or waives subrogation of an insurer under the insurance policy provides that if subrogation of an insurer is permitted with respect to life insurance which does not have the nature of non-life insurance, the insurer would transfer the insurance proceeds to the insured or the beneficiary (hereinafter “insured, etc.”) so that the rights of the insured, etc. against a third party may be neglected to protect the insured, etc. by law regardless of the intent of the insured, and thus, barring special circumstances, such as where the transfer of the rights to the third party of the insured, etc. is legally prohibited, or where the rights of the insured, etc. are unfairly infringed by the insured, etc. by neglecting the purport of the first sentence of Article 729 of the Commercial Act, the mere fact that the insured, etc. has a provision prohibiting or waivering subrogation of the insurer under the first sentence of Article 729 of the Commercial Act cannot be deemed to be prohibited to freely transfer the rights to the insurer based on any other

[2] Article 32 of the Guarantee of Automobile Accident Compensation Act provides that an insurer of traffic accident under Article 9 (1) of the same Act shall not be subject to seizure or transfer of the right to directly claim against the insurer of traffic accident under Article 9 (1) of the same Act. Article 9 (1) of the same Act provides that in the event the liability for damages occurred to the "insured, etc." under Article 3 of the same Act, the victim may directly claim against the insurer, etc. for payment of the insurance money, etc. to the insurer, etc.

[3] In a case where an insurer who has paid insurance money to a beneficiary under a situation where the responsibility for a traffic accident is unclear, and the beneficiary, as the victim of a traffic accident, has entered into a contract under which the insurer should be assigned a considerable amount of the insurance money out of the above damage claim by securing the claim for return of unjust enrichment equivalent to the insurance money already paid, or by paying the above damage claim through repayment, the case holding that the claim can be transferred without violating Article 32 of the Guarantee of Automobile Accident Compensation Act with respect to the remainder, which remains after deducting the compulsory insurance money

[1] Article 729 of the Commercial Act / [2] Articles 5(1), 8, 9(1), and 32 of the Guarantee of Automobile Accident Compensation Act / [3] Article 729 of the Commercial Act, Articles 5(1), 8, 9(1), and 32 of the Guarantee of Automobile Accident Compensation Act

[2] Supreme Court Decision 2003Da6774 decided Oct. 7, 2005 (Gong2005Ha, 1765) Supreme Court Decision 2005Ma1141 decided Apr. 20, 2006 (Gong2006Sang, 877)

Green Fire Marine Insurance Co., Ltd. (Law Firm Han light, Attorneys Park Tae-tae et al., Counsel for the plaintiff-appellant)

Hyundai Marine Fire Insurance Co., Ltd. (Law Firm Vindication, Attorneys Gyeong-soo et al., Counsel for the plaintiff-appellant)

Seoul Central District Court Decision 2005Na22922 Decided July 21, 2006

The judgment below is reversed, and the case is remanded to Seoul Central District Court Panel Division.

The grounds of appeal are examined.

Article 729 of the Commercial Act or Article 729 of the Commercial Act provides that prohibition or waiver of subrogation by an insurer shall be construed as taking into account the fact that if subrogation by an insurer is permitted with respect to life insurance which does not have the nature of non-life insurance, the insurer shall pay the insurance proceeds to the insured or the beneficiary (hereinafter “insured, etc.”) so that the rights of the third party of the insured, etc. may be transferred to the insurer regardless of the intent of the insured, and the protection of the insured, etc. might be neglected by law. Thus, barring special circumstances such as where the transfer of the rights to the third party of the insured, etc. is legally prohibited, or where the rights of the insured, etc. are unfairly infringed by the insured, etc. by neglecting the intent of the first part of Article 729 of the Commercial Act or the provisions of Article 729 of the Commercial Act merely because the insured, etc. are prohibited or waiver of subrogation by the insurer under the first part of Article 729 of the Commercial Act,

Meanwhile, Article 32 of the Guarantee of Automobile Accident Compensation Act provides that an insurer of traffic accident under Article 9 (1) of the same Act shall not be subject to seizure or transfer of the right to direct claim against the insurer of traffic accident under Article 9 (1) of the same Act. Article 9 (1) of the same Act provides that where the liability for damages under Article 3 of the same Act has occurred to the "insured, etc." the victim may claim directly to the insurer, etc. for payment of the insurance money, etc. to the insurer, etc., and Article 8 of the same Act defines the person who has purchased compulsory insurance and the pertinent compulsory insurance contract as the "insured, etc..." Thus, the victim's right to direct claim against the insurer, etc. under Article 9 (1) of the same Act is limited to the scope of the compulsory insurance money enforced under Article 5 (1) of the same Act in cases where the liability for damages has occurred to the insured of the insurance company, etc. (see Supreme Court Decisions 2003Da6774, Oct. 7, 2005).

In light of the above legal principles and the reasoning of the judgment below and the record, the term "insurance money" of the automobile insurance contract entered into between the plaintiff and the deceased non-party 1 provides that "the amount of compensation for the automobile insurance i and personal injury II" shall be deducted from "the amount of compensation for the automobile insurance i and the accident ii". In the case of the self-physical accident, the insurer shall not be acquired by subrogation of the insured's claim for damages against the third party. However, the plaintiff shall pay 30,000,000 won to the non-party 2, who is the wife of the deceased non-party 1, in a situation where the responsibility for the accident is unclear immediately after the accident occurred. If it is proved that the non-party 2 is able to receive damages from the defendant who is the insurer of the vehicle, the insurer of the vehicle, even if there is no ground for paying the insurance money, and thus, the insurer shall not be deemed to be subject to the waiver of the insurance contract or the insurer's subrogation contract of this case (hereinafter referred to as "non-party 2's subrogation contract").

However, since the assignment of claim in this case was transferred by the Plaintiff’s damage claim against Nonparty 2 by means of collateral for repayment of unjust enrichment claim held by the Plaintiff against Nonparty 2 or by repayment, it is null and void to the extent of violation of the prohibition of assignment under Article 32 of the Guarantee of Automobile Accident Compensation Act. According to Article 5(1) of the same Act and Article 3 of the former Enforcement Decree of the Guarantee of Automobile Accident Compensation Act (amended by Presidential Decree No. 18286 of Feb. 21, 2004), in the event the insured of compulsory (liability Insurance) is liable for damages, the amount of the compulsory (liability Insurance Money) insurance money under Article 5(1) of the same Act is KRW 80,000 if the victim died. According to the reasoning of the judgment below, the damages claim against Defendant 1, which was recognized by Nonparty 2 in the final judgment of a lawsuit claiming damages against Defendant 2, KRW 00,000, KRW 800, KRW 1000, KRW 2000, KRW 800 (300).

Nevertheless, the court below rejected all of the plaintiff's claim for the takeover of this case on the ground that the contract is null and void, inasmuch as the plaintiff waived the insurer's subrogation and concluded the transfer contract of this case in violation of Article 32 of the Guarantee of Automobile Accident Compensation Act. The court below erred by misapprehending the legal principles as to the prohibition of subrogation by the insurer and the prohibition of transfer of Article 32 of the Guarantee of Automobile Accident Compensation Act, which affected the conclusion of the judgment.

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Young-ran (Presiding Justice)