The case holding that in the case where the Oral Baba parked on the alleyway had a high risk of being driven by the front and rear wheels, and the Oral Baba owner left it every day while the owner of Oral Baba left it alone as it is, if the above Oral Baba died, it constitutes "accident due to operation" as stipulated in Article 3 of the Guarantee of Automobile Accident Compensation Act.

Article 2 subparag. 2 of the Guarantee of Automobile Accident Compensation Act, Article 3 of the Act, Article 750 of the Civil Act

Dongbu Fire Marine Insurance Co., Ltd. (Attorney Kang Sung-sung, Counsel for defendant-appellee)

Yellow State (Attorney Park Jong-chul, Counsel for the defendant-appellant)

Seoul High Court Decision 2002Na01515, 15162 decided October 25, 2002

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

The grounds of appeal are examined.

1. The facts duly admitted by the court below after compiling the evidence of the employment are as follows.

A. On March 16, 2001, the Plaintiff (Counterclaim Defendant; hereinafter referred to as the “Plaintiff”) concluded a liability insurance contract between Nonparty 1 and Nonparty 1, with respect to the vehicle (hereinafter referred to as “the instant vehicle”) owned by Nonparty 1, Nonparty 1, the insured, and the insurance period until March 16, 2002 (hereinafter referred to as “instant insurance contract”).

B. The general terms and conditions of the instant insurance contract refer to the liability insurance under the Guarantee of Automobile Accident Compensation Act, which Non-party 1 subscribed to. The liability for compensation refers to the liability insurance under the Guarantee of Automobile Accident Compensation Act. The term "damage caused by the insured's death or injury caused by the insured's death or injury caused by the possession, use, and management of the insured motor vehicle as stated in the insurance policy," and the scope and scope of the liability for compensation is also stipulated in the Guarantee of Automobile Accident Compensation Act.

C. From the beginning of August 2001, Nonparty 1: (a) installed the wall surface on the hushes of the hushes of the building in front of 226-35-2, Gangdong-gu, Seoul, which is one’s own residence; (b) installed the hushes at the left end; and (c) did not operate the hushes by using the hushes in support of the outer winds at the left bottom of the hushes; and (d) Nonparty 1 did not operate the above hushes; (c) even though the hushes at the front and rear wheels of the above hushes, it was left alone as it is.

D. The above alley is a side-way with a width to the extent that it can pass by a car, and it was a place where young children had his/her own seat.

E. At around August 19, 2001, Non-party 1, a female son, who was living in the building on the side where the Austria was established, died on the wind over which the Hatoba had been living in the above Hatoba, and died on the wind over which the Hatoba was living in the above Hatoba (three years old) around 18:50.

2. According to the reasoning of the judgment below, the court below determined that liability insurance under the insurance contract of this case is to compensate for damages caused by the accident caused by the operation of the Oral Ba, and that Nonparty 1 parked the Oral Ba as long as the house of this case was opened on the alleyway, it is difficult to view the accident of this case caused by the operation of the Oral Ba in this case as an accident caused by the operation of the Oral Ba, and therefore, the insurer and its father (hereinafter only referred to as the “Defendant”) did not have a duty to compensate the Plaintiff for damages caused by the above accident, citing the Plaintiff’s claim against the Defendant seeking confirmation that there was no liability insurance payment obligation against the Defendant, and dismissed the Defendant’s claim against the Plaintiff seeking the payment of liability insurance money against the Plaintiff.

3. However, we cannot agree with the above determination by the court below for the following reasons.

According to the general terms and conditions applicable to the insurance contract of this case, the plaintiff's liability for compensation is to compensate for the damage suffered by the non-party 1 as a result of the non-party 1's death or injury of another person due to the ownership, use, and management of the Oral Ba of this case, and the Guarantee of Automobile Accident Compensation Act provides that "the person who operates an automobile for his own sake shall be liable for compensation for the damage caused by the death or injury of another person due to the operation of the automobile," and the term "operation" in subparagraph 2 of Article 2 refers to the use or management of the automobile according to its usage, regardless of whether or not it carries persons or articles."

However, the facts of the judgment below's finding as stated in Paragraph 1 above are revealed by the records. The non-party 1 parked the above part of the above part of the stoke on the alleyway that fluorians own, use, and manage it, and it can be deemed that the accident of this case caused the negligence of care to observe when it comes to the possession, use, and park of the stokeba in accordance with the insurance contract of this case where the plaintiff is liable to compensate for damages according to the insurance contract of this case as follows: "the accident of this case is owned by the management of the stoba" of this case where the body of the stoba is relatively low compared to the outer part of the stoke, and it is very low that the above stokea has been left alone and there is a high risk of using the stoba, and it is only neglected to do so.

Therefore, the judgment of the court below that it is difficult to deem the accident of this case as an accident due to the operation of the above Oral Ba, shall be erroneous in the interpretation of the general terms and conditions applicable to the insurance contract of this case. The ground of appeal pointing this out has merit

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Zwon (Presiding Justice)