[1] In a case where a non-licensed driver is a policyholder or a family member living together of the insured in a comprehensive automobile insurance contract which is stipulated in the terms and conditions of non-licensed driving exemption, whether it is included in a third party who is the subject of the exercise of insurer subrogation right (negative)

[2] Whether it can be deemed that only the fact of driving without a license has caused an accident by intentionally causing an accident (negative)

[3] The case holding that a subrogation by an insurer under Article 682 of the Commercial Act cannot be recognized on the ground that a policyholder or a family member living together with the insured had driven without a license

[1] In a case where the insured acquires the right to claim compensation for the insured's relatives living together, the insured would be expected to waive the right to claim compensation or leave the insured without exercising his/her right by intention. In such a case, if the insurer permits the insurer to acquire and exercise by subrogation the right not exercised by the insured, the insured would result in the same result as not being paid insurance money, which would substantially undermine the effectiveness of the insurance system. While the non-licensed terms and conditions aim at reducing the risks of security in the insurance clauses and allowing the discount of insurance premium, it is reasonable to view that even if the non-licensed driver's family members are the subject of the insurer's subrogation right even in a case where the non-licensed driver's family members are the insured driver's family members without any explicit or implied intention, it would not be included in the scope of Article 682 of the Commercial Act, unless there are special circumstances under which the non-licensed driver's family members living together with the non-licensed driver's insurance contract is the subject of the insurer's subrogation right.

[2] Even if an act without a license is subject to criminal punishment, it shall not be deemed that an act causes damage by intentionally causing an accident on the ground that the act without a license was conducted.

[3] The case holding that a subrogation by an insurer under Article 682 of the Commercial Act may not be recognized on the ground that a policyholder or a family member living together of the insured had driven without a license, on the ground that an intentional loss occurred

[1] Article 682 of the Commercial Act / [2] Article 682 of the Commercial Act / [3] Article 682 of the Commercial Act

[1] Supreme Court Decision 2000Da9116 decided Jun. 23, 2000 (Gong2000Ha, 1748)

Dongbu Fire Marine Insurance Co., Ltd. (Law Firm Vindication, Attorney Jeon Jae-in, Counsel for plaintiff-appellant)

Defendant 1 and one other (Law Firm Asian, Attorneys Park Woo-soo, Counsel for the defendant-appellant)

Seoul High Court Decision 2001Na67128 delivered on May 9, 2002

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

1. The court below concluded a comprehensive automobile insurance contract (hereinafter referred to as the "automobile insurance contract of this case") with respect to the plaintiff's non-party 1, as to the plaintiff's lawsuit owned by the same person (hereinafter referred to as "the plaintiff's automobile of this case"). The defendant 1, who did not obtain a driver's license as his children, purchased the automobile insurance contract of this case from the non-party 1, around August 28, 1995, with the non-party 1, the key was put into the cremation kn't't't't't't't't't't't's house k's house k's k's k's k's k's k's k's k's k's k's own house k's k's k's k's k's k's k's k's k's k's k's own house.

2. Where the insured acquires the right to claim compensation for the insured's relatives living together, the insured would be expected to waive the right to claim compensation or leave the insured without exercising his/her right with his/her intention. In such a case, if the insurer permits the exercise of the right not exercised by the insured by subrogation, the insured would result in the same result as not being paid insurance money, and the effect of the insurance system would considerably undermine the effectiveness of the insurance system. However, even if the non-licensed driver's family living together with the insured's family living together with the insured's aim is to reduce the risks of security in the insurance clause and make the premium discounts possible, it is reasonable to view that the non-licensed driver's family living together with no driver's family living together with no driver's family living together with no driver's family living together with no driver's family living together with no driver's family living together with no driver's family living together with no driver's family living together with no driver's family living together with no driver's family living together with no driver's family living together with no driver's family living together with the insurer's family.

The court below reasoned that Defendant 1 is a tort directly causing the accident of this case, and that Defendant 2, as his father, was negligent in protecting and supervising Defendant 1, who is a minor, to prevent driving of an automobile without a license, caused the accident of this case. Thus, the defendants are liable for all damages suffered by the victims due to the accident of this case. Since the plaintiff paid the compensation amount to the victims due to the accident of this case as above, the plaintiff acquired the right to indemnity against the defendants pursuant to Article 682 of the Commercial Act, and the plaintiff's claim of this case seeking the payment of the amount paid by the plaintiff to Samsung Fire and the compensation amount for its delay, the defendants cannot be deemed to have been done without the permission of the policyholder or the insured's explicit or implied approval. The defendants are children living together with the non-party 1, who is the insured of the automobile insurance contract of this case, and the defendants are not included in the scope of the insurer under Article 682 of the Commercial Act. The judgment of the court below is justified in the misapprehension of legal principles as seen above.

In addition, even if the operation without a license is a criminal act subject to criminal punishment, it cannot be deemed that the accident caused by intentional driving only on the ground of the fact that the operation without license was conducted, and the damage was caused by the accident. Therefore, the plaintiff's ground of appeal that the subrogation of insurer under Article 682 of the Commercial Act should be recognized on the ground that the damage caused by intentional driving is caused by the accident cannot be accepted.

3. Therefore, the appeal is dismissed, and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Song Jin-hun (Presiding Justice)