[1] The purport of the "special agreement on other motor vehicle driving security" that is automatically applied to the case where an accident insurance policy of an individual motor vehicle insurance is subscribed for by an accident insurance policy

[2] Criteria for determining the "motor vehicles ordinarily used" excluded from the subject of insurance covered by the "Special Agreement on other Motor Vehicle Operation Security"

[3] The purpose of the "special agreement on vehicle driving security" to cover the "alternative motor vehicle" and the meaning of the "vehicle scrapping of the insured motor vehicle"

[4] The case holding that in a case where an insured motor vehicle that suffered a traffic accident is not repaired and operated while another motor vehicle is purchased and operated by leaving the way alone on the air without repairing it, another motor vehicle that newly purchased and operated cannot be deemed as an "alternative motor vehicle" under the "Special Agreement on Security for Operation of other Motor Vehicles," and it constitutes an "motor vehicle which is ordinarily used" excluded from the subject of insurance coverage

[1] The purpose of the "special agreement on driving security" automatically applied to the case of an accident insurance for an insured automobile among the insurance for an insured automobile, is to ensure risk by the use of another automobile within the scope of the risk of an insured automobile, in case where the insured who drives an insured automobile temporarily drives another automobile, and it is judged within the scope of the risk of an insured automobile, as it can be the same as the use of the insured automobile, and thus, it is recognized that the risk of an accident is within the scope of the risk of an insured automobile.

[2] In light of the purport of the “other special agreement on vehicle driving security”, the “automobile which is ordinarily used” which is subject to insurance by the special agreement shall be separate from the insured automobile, and thus excluded from the scope of coverage by the said special agreement. The issue of whether it falls under this shall be determined by comprehensively taking into account the following factors: (a) whether the insured is in a state of temporary use (the right to use), whether the insured is in a state of temporary use (the frequency of use) beyond the term of use of the pertinent automobile; (b) whether the insured is in a state of temporary use (the frequency of use) more frequently than the ordinary use (the frequency of use); (c) whether the owner of the pertinent automobile needs to obtain permission for each time the insured is granted a comprehensive permission for use (the universality of the permission for use); and (d) whether the purpose of use of the said automobile is specified (the existence of restrictions on the purpose of use

[3] One of the "other automobiles covered by a special contract for driving security" which is one of the "other automobiles insured by a special contract." Thus, in the case where the insured in the insurance contract provides that "if the insured in replacement of an insured automobile has occurred, from the time of the occurrence of such fact to the time of approval by the company, the substitute automobiles shall be scrapped within the insurance period, and if the insured in the same type of automobile is replaced by another automobile, it shall be deemed as one of the substitute automobiles which is ordinarily excluded from the coverage covered by the above special contract. However, even if the insured in the same type of automobile newly acquired is covered by the existing insurance contract, it shall not be deemed as deviating from the purpose of the special contract for driving security even if the risks of the insured automobile have ceased to exist by the replacement of the insured automobile, it shall not be deemed that the insured in light of the above purport as stated in the "vehicle Management Act" in the above special contract, it shall not be deemed that the insured automobile has been removed from the condition of the vehicle's chassis number or operation risks of the insured automobile, it shall not be viewed or terminated.

[4] In a case where a traffic accident occurred while a motor vehicle was purchased and operated by leaving the way alone without repairing the insured motor vehicle which was involved in the traffic accident, the case holding that since it cannot be deemed that the existing motor vehicle was in a situation corresponding to the scrapping and its operation profit, it cannot be deemed that the risk of the occurrence of the insurance accident by the existing motor vehicle was completely extinguished, another motor vehicle newly purchased and operated cannot be deemed to constitute a "alternative motor vehicle" under the special contract for the operation security of another motor vehicle, and that it constitutes a "motor vehicle which is ordinarily used" which is excluded from the subject of the insurance, since it was in a state where it is actually possible to use it freely

[1] Article 726-2 of the Commercial Act/ [2] Article 726-2 of the Commercial Act/ [3] Article 726-2 of the Commercial Act/ [4] Article 726-2 of the Commercial Act

Law School Loss Insurance Co., Ltd. (Law Firm Locom, Attorneys Yang Dong-chul et al., Counsel for the defendant-appellant)

Defendant

Jeonju District Court Decision 2007Na2599 Decided July 20, 2007

The judgment of the court below is reversed, and the case is remanded to the Jeonju District Court Panel Division.

The grounds of appeal are examined.

1. The purport of the “other special agreement on driving security” automatically applied to the case of purchasing an accident insurance policy for an insured automobile, among the insurance for an insured automobile, is to guarantee the risk of an insured automobile by using another automobile within the scope of the risks likely to be assumed as to an insured automobile, as the insured automobile could temporarily be the same as the use of the insured automobile in case where the insured who drives an insured automobile temporarily drives another automobile, and thus, can be assessed to be within the same extent as the use of the insured automobile.

In light of the purport of the above special agreement, the "motor vehicle which is ordinarily used" excluded from the "other motor vehicle" which is subject to insurance by the above special agreement shall be excluded from the insured motor vehicle subject to insurance separate from the insured motor vehicle, and thus, the issue of whether it falls under the above special agreement shall be determined by comprehensively taking into account whether the insured is in a state where it can be freely used (the existence of discretion to use) other than the period of use of the motor vehicle in question, whether the insured is in a state where it is ordinarily used (the frequency of use), whether the owner of the motor vehicle is required to obtain permission whenever it is used by the insured, or whether he has obtained the comprehensive permission for use (the universalness of permission for use), whether the purpose of use of the motor vehicle in question is specified (the existence of limitation on the purpose of use), and whether the use of the motor vehicle in question may deviate from the scope of risk predicted

Meanwhile, one of the above "other automobiles insured by a special contract for driving security" stipulated in the above " substitute automobiles" as one of the "other automobiles insured by such special contract" and where the insured in the insurance policy provides that "if the insured is replaced by an insured automobile, from the time of the occurrence of such fact to the time of approval by the company, the insured automobile shall be scrapped during the insurance period and replaced by another automobile of the same type, it shall be deemed as one of the substitute automobiles. Such purport of the substitute automobiles generally falls under the "automobile ordinarily used" excluded from the coverage covered by the above special contract, but as long as the risk of the insured automobile has ceased to exist by the replacement of the insured automobile, it shall not be deemed as deviating from the purpose of the other special contract for driving security even if it does not completely cover the same type of automobile, it shall be interpreted that the insured cannot be seen as falling under the condition of the vehicle's chassis or removal of the insured automobile, and it shall not be deemed that the insured automobile cannot be seen as falling under the condition of the automobile's vehicle's dismissal or removal of the insured automobile without its performance or removal.

2. A. According to the evidence duly admitted by the court below, the defendant transferred the existing automobile to the plaintiff on December 1, 2005 and entered into the comprehensive automobile insurance contract of this case including compensation for injury caused by the non-life insurance contract of this case with respect to the previous automobile owned by the defendant from December 1, 2005 to December 1, 2006 (in the case of the previous automobile accident of this case, the defendant would have failed to operate the previous automobile because of the accident of this case caused the accident to occur and the degree of 1.5 million won exceeded the market price of this case to repair it, and the new automobile would normally be replaced by the non-party's new automobile insurance contract of this case to be replaced by the non-party's new automobile accident of this case (the non-party's new automobile accident of this case to be replaced by the non-party's new automobile accident of this case to be replaced by the non-party's new automobile accident of this case to be replaced by the non-party's new automobile accident of this case.

B. In light of the aforementioned legal principles and facts, even if the Defendant, on June 30, 206, purchased the instant existing vehicle on or around 23:30, when the accident occurred and the operation of the instant existing vehicle became impossible, left alone on the road, such circumstance alone does not lead to the Defendant’s scrapping of the instant existing vehicle by either compressing, crushing, cutting, or dismantling it without dismantling it. In addition, it is difficult to view that the Defendant lost all operation control and operation benefits of the instant existing vehicle and completely extinguished the risk of the instant accident by the existing vehicle. Thus, even if the Defendant purchased the instant existing vehicle on or around 17:00, and paid the price for the instant vehicle and received documents necessary for the transfer of ownership, the Defendant cannot be deemed to have owned the instant existing vehicle under the Act on the Safety Control and Operation of the instant Motor Vehicle, which is an insured vehicle, and thus, cannot be deemed to have been deemed to have newly acquired the instant vehicle under the Act on the Safety Control and Operation of the present Motor Vehicle, since the present existing vehicle was in a situation corresponding to the foregoing.

Although there is no inappropriate point at the time of the lower judgment’s explanation, it is justifiable to conclude that the present vehicle cannot be deemed to be in the condition of “vehicle scrapping” stipulated in the instant special terms and conditions, and that the present vehicle does not constitute “alternative vehicle” stipulated in the instant special terms and conditions.

C. However, in light of the legal principles and facts as seen earlier, the Defendant purchased the instant vehicle on July 7, 2006, paid in full the balance, and operated the instant vehicle upon delivery, and caused the instant accident following the date. At the time of the instant accident, the seller of the instant vehicle at the time of the instant accident fully lost its operation control and operation profit, while the Defendant, the buyer, actually acquired the ownership of the instant vehicle and was able to freely use the instant vehicle without any restriction. Thus, even if considering that the instant accident occurred after the lapse of 10 hours from the date the Defendant purchased the instant vehicle, the use of the instant vehicle newly acquired by the Defendant cannot be deemed as temporary use of the instant vehicle, and thus, it should be deemed that it deviates from the scope of risk predicted regarding the use of the instant existing vehicle. Accordingly, the instant accident cannot be deemed as falling under the “motor vehicle ordinarily used” under subparagraph 1 of the instant special terms and conditions, and thus, it cannot be deemed as constituting a “other” insured vehicle under the instant special terms and conditions.

Nevertheless, there is no evidence to prove that the Defendant had used the instant vehicle freely for a considerable period prior to the instant accident, and rather, it cannot be deemed that the Defendant had used the instant vehicle for a considerable period of time in light of the Defendant’s purchase of the instant vehicle from the instant accident 10 hours prior to about 10 hours, the lower court determined to the effect that the instant vehicle constitutes “other vehicles” as stipulated in the instant special terms and conditions on the ground that it does not constitute “a motor vehicle which is ordinarily used” that is excluded from the subject of insurance coverage under the instant special terms and conditions. In so doing, the lower court erred by misapprehending the legal doctrine on the interpretation of the insurance terms and conditions, and by misapprehending the legal doctrine on the interpretation of the insurance terms and conditions,

3. Conclusion

Therefore, 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 on the bench.

Justices Kim Ji-hyung (Presiding Justice)