[1] Whether driving a 12-party passenger vehicle with a 2-class ordinary driver's license constitutes an unlicensed driving under the General Terms and Conditions of Motor Vehicle Insurance (affirmative)

[2] The case holding that where an insurance company's employee concludes an insurance contract with the policyholder as the owner of a 12-class general driver's license even though the policyholder was the owner of a 2-class general driver's license, the insurance company's employee agreed to exclude the application of the non-exclusive driver's license clause unless the policyholder's license was revoked and suspended

[1] The 12 passenger cars cannot be driven by the second-class ordinary driver's license held by the main driver, and therefore, the driving of the automobile by the main driver constitutes a non-exclusive driver's license under Article 10 (1) 6 of the General Terms and Conditions of Business Automobile Insurance.

[2] Where an insurance company's business office employee in charge of the insurance business has been aware of the fact that the 12th class ordinary driver's license under the Road Traffic Act is unable to drive the vehicle, but the number of passengers in the column for the "number of passengers aboard" of the certificate of inspection of the insured motor vehicle submitted by the policyholder is 12, the insurance company entered into an insurance contract with the policyholder subject to punishment for without a license if the vehicle is operated, and the policyholder paid compensation for the loss without any objection even though the policyholder caused an accident while driving the vehicle after concluding the insurance contract, it is reasonable to view that the insurance company entered into an agreement with the policyholder to compensate for the loss caused by the accident unless the two class ordinary driver's license is revoked or suspended.

[1] Article 726-2 of the Commercial Act, Article 40 (1) of the Road Traffic Act / [2] Article 105 of the Civil Act, Article 726-2 of the Commercial Act

[2] Supreme Court Decision 95Da47398 delivered on September 5, 1997 (Gong1997Ha, 3002)

Hyundai Marine Fire Insurance Co., Ltd. (Attorney Oat-jin, Counsel for defendant-appellee)

Defendant (Attorney Yoon Young-young, Counsel for the defendant-appellant)

Seoul District Court Decision 95Na50447 delivered on March 22, 1996

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. According to the reasoning of the judgment below, the facts acknowledged by the court below based on the evidence adopted in its judgment are as follows.

On August 30, 1990, the Defendant entered into a comprehensive business automobile insurance contract with the Plaintiff on August 30, 1990 with a period of 12 months between the Plaintiff and the Plaintiff to compensate for losses suffered by the Defendant as a result of the Plaintiff’s death or injury caused by the operation of the instant vehicle. At the time of entering into the instant insurance contract, the Defendant stated the owner operator on the insurance subscription as the Defendant, and submitted a copy of the inspection certificate of the instant vehicle and a copy of the Defendant’s driver’s license to the Plaintiff’s employees. The aforementioned computerized classification stated “17, small buses” in the insured automobile model column of the said insurance subscription, and the above “17” in the above computerized classification refers to a small-sized passenger vehicle with a statutory passenger capacity of between 7 and 16 personal passengers, and such a small-sized passenger vehicle is 9 passengers or 12 passengers, and there is no difference in the insurance premium before the conclusion of the instant insurance contract with the Defendant on July 19, 1998.

After that, around 10:00 on April 14, 1991, the Defendant driven the above insurance vehicle, and the Defendant dried up the way in front of the Geum-gun, Geak-gun, Geak-gun, Geak-gun, Geak-gun, Geak-si, Geak-gun, the Plaintiff paid the Defendant the amount of KRW 245,00 on May 22, 1991, for the treatment expenses for the above reasons, KRW 4,810,00 on November 5, 1992, KRW 5,175,440 on April 1, 1994, the sum of KRW 10,230,440 on May 22, 1991.

On the other hand, Article 10 (1) 6 of the General Terms and Conditions for Business Automobile Insurance of the Plaintiff Company provides that the damages caused by an accident that occurred when the driver of the insured automobile without a license shall not be compensated for, and the term "unlicensed driving" of the above terms and conditions refers to a non-licensed driving or non-qualified driving in violation of the provisions of the Road Traffic Act concerning driver's license under the Road Traffic Act and includes driving under suspension or prohibition.

2. However, since it is clear that the instant motor vehicle is 12 passengers and 12 passengers, it cannot be driven with a Class-II ordinary driver's license possessed by the Defendant, and therefore, the Defendant's driving of the instant motor vehicle constitutes a non-exclusive driver's license under Article 10 (1) 6 of the General Terms and Conditions of the instant Motor Vehicle Comprehensive Insurance.

However, according to the facts duly established by the court below, the defendant stated as the defendant at the time of entering into the insurance contract of this case the main driver on the subscription of this case and the defendant's driver's license were submitted to the plaintiff company's employee, and stated as the computer classification number 17 and small buses on the insured automobile model column on the above insurance subscription form. The above computer classification 17 refers to the small-sized passenger vehicles with the statutory seating capacity of between 7 and 16 personal capacity, and there is no difference in the insurance premium in the case of the small-sized passenger vehicles owned by this individual owner with nine and twelve passengers. Meanwhile, according to the records, the plaintiff's employees, who were in charge of the insurance contract of this case, were aware of the fact that the plaintiff's 2nd ordinary driver's license of this case cannot drive the 12nd passenger vehicles under the Road Traffic Act and the defendant's 2nd driver's license of this case without the defendant's approval of 92nd driver's license of this case.

Therefore, in accordance with the above agreement, the Plaintiff is obligated to compensate for damages suffered by the Defendant due to the instant accident. Thus, the Plaintiff cannot accept the Plaintiff’s claim seeking the return of the medical expenses paid due to the instant accident on the premise that the instant accident fell under the exemption clause for unauthorized driving under the above terms and conditions and the Plaintiff did not have the obligation to compensate for damages.

Although the reasoning of the judgment of the court below is somewhat inappropriate, the judgment of the court below is justified as it is in conclusion as above, and there is no error of law by misapprehending the legal principles as to interpretation of the terms and conditions of non-performance of reasons or non-exclusive license exemption. The grounds for appeal pointing this out cannot be accepted.

3. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the plaintiff-Appellant. It is so decided as per Disposition by the assent of all Justices who reviewed the appeal.

Justices Park Jong-chul (Presiding Justice)