[1] Whether it is a fact-finding court’s exclusive authority to determine the fact-finding or ratio as to the grounds for comparative negligence (affirmative in principle)

[2] The case holding that, in a case where the comprehensive automobile insurance contract entered into with Gap's husband Eul, which entered into with Byung, includes another automobile driving security clause, "if the insured (including his spouse) suffers damage as a result of an accident causing another automobile while driving (excluding parking or stopping), it shall be deemed that another automobile driven by the insured is an insured automobile and compensate in accordance with the ordinary terms and conditions." However, in a case where the automobile accident occurred while Gap stops while driving a vehicle owned by Eul while stopping it, it is for the purpose of making Gap stop the vehicle, and such a situation of stopping constitutes a stop, and the above accident is deemed an accident that occurred while stopping

[1] In tort, comparative negligence is set in consideration of the victim’s fault in light of the principle of equity or good faith. Matters to be considered include the perpetrator’s intent and negligence, degree of the victim’s intentional act, occurrence of illegal act and expansion of damages. Determination of fact-finding or ratio on the ground of comparative negligence falls under the exclusive authority of a fact-finding court, unless it is deemed that it is considerably unreasonable in light of the principle of equity.

[2] The case holding that in a case where the comprehensive automobile insurance contract that was concluded with Gap's husband Eul (including his spouse) includes another automobile driving security clause that "if the insured (including his spouse) suffers damage as a result of an accident that occurred while driving another automobile (excluding parking or stopping), it shall be deemed that another automobile driven by the insured is insured and compensated in accordance with the ordinary terms and conditions." However, in a case where the automobile accident occurred while Gap stops in order to make the vehicle driven by her husband while driving the vehicle, the case held that it is not reasonable in light of the language, structure, etc. of the above special terms and conditions where the driver stops the vehicle in order to let the passenger get off, it constitutes a stop as stipulated in the above special terms and conditions, and that it constitutes an accident that occurred while stopping the vehicle.

[1] Articles 396 and 763 of the Civil Act; Articles 202 and 432 of the Civil Procedure Act / [2] Article 105 of the Civil Act; Articles 2 subparag. 24, 25, 26, 30, 32 subparag. 4, and 51(1) of the Road Traffic Act

[1] Supreme Court Decision 98Da54397 delivered on June 9, 2000 (Gong2008Ha, 1603)

Samsung Fire Insurance Co., Ltd. (Attorney Kim Tae-tae, Counsel for defendant-appellant)

Defendant 1

Lawing Damage Insurance Co., Ltd. (Dong & Yang Law LLC, Attorneys Seo Jung-hee et al., Counsel for the plaintiff-appellant)

Defendant 3 and one other (Law Firm Mawon, Attorneys Ansan-sung et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2015Na2037359 decided December 3, 2015

The part of the judgment of the court below against Defendant lot damage insurance company is reversed, and that part of the case is remanded to the Seoul High Court. All of the Plaintiff’s appeal is dismissed. The costs of appeal by the Plaintiff are assessed against the Plaintiff.

The grounds of appeal are examined.

1. Basic factual basis

According to the reasoning of the lower judgment, the following facts are revealed.

A. On July 19, 2012, Defendant 1 driven a motor vehicle owned by Defendant 3 (motor vehicle number 1 omitted) (hereinafter “instant motor vehicle”), and stopped the motor vehicle so that Defendant 3, who was in the rear seat on the two-lanes in front of the second line of the 2nd line of the Seongbuk-gu Seoul Seongbuk-dong, Seongbuk-gu, Seoul, left the motor vehicle. Defendant 3 driven the rear of the motor vehicle (motor vehicle number 2 omitted) was a narrow space between the right side and the delivery of the instant motor vehicle, and Nonparty 1 was faced with the rear part of the said motor vehicle, and there was an accident (hereinafter “instant accident”).

B. Nonparty 1 concluded a comprehensive motor vehicle insurance contract with the Plaintiff, the insurer for the motor vehicle owned (motor vehicle number 3 omitted), and the contract includes “the special agreement on coverage by an uninsured motor vehicle”.

Defendant 1’s husband Nonparty 2: (a) concluded a comprehensive automobile insurance contract with Defendant Bar Association Co., Ltd. (hereinafter “Defendant Bar Association”) on his (vehicle number 4 omitted); (b) Nonparty 2 as the insured; and (c) as the insured, the contract includes “other automobile driving security special terms and conditions” (hereinafter “the instant special terms and conditions”). The instant special terms and conditions provide that “In the event the insured (including his spouse) suffers damage as a result of an accident that occurred while driving another vehicle (excluding parking or stopping), the insured shall be deemed to be another automobile driving by the insured and shall be compensated as prescribed in the ordinary terms and conditions.”

As to the instant automobile, Defendant 3 entered into the instant comprehensive automobile insurance contract with Defendant Music Damage Insurance Co., Ltd. (hereinafter “Defendant Music Damage Insurance”), and Defendant 3 as the named insured and included “one limited driving clause for the named insured” in the said contract. The said special terms and conditions provide that “The insurance money shall not be paid for an accident that occurred while a person other than the named insured was driving (However, this provision does not apply to the designated insured).”

C. The Plaintiff paid KRW 292,217,400 as damages to Nonparty 1 in accordance with the special agreement on the coverage of an injury under the comprehensive automobile insurance contract with Nonparty 1, and received KRW 120,000,000 as liability insurance money from Defendant malicious Insurance.

2. An incomplete hearing on the ratio of negligence (Plaintiff’s ground of appeal No. 1)

A. In tort, comparative negligence is set in consideration of the victim’s negligence in light of the principle of equity or good faith. Matters to be considered include: (a) the perpetrator and the victim’s intentional or negligent act; and (b) the occurrence of illegal act and the expansion of damages. The determination of the fact-finding or its ratio on the ground of comparative negligence belongs to the exclusive authority of the fact-finding court unless it is deemed that it is considerably unreasonable in light of the principle of equity (see, e.g., Supreme Court Decision 98Da54397, Jun. 9, 200).

B. The lower court limited Defendant 1 and Defendant 3’s liability to compensate for the instant accident to 65%, taking into account the circumstances surrounding the instant accident, etc. In light of the aforementioned legal principles and facts, the lower court did not err in its judgment by failing to exhaust all necessary deliberations as to the ratio of negligence, contrary

3. Whether Defendant lot damage insurance is exempt (Ground of appeal on Defendant lot damage insurance)

A. Defendant Barun Policy asserted that the instant accident was an accident that occurred while stopping, and thus constitutes an exemption from liability stipulated in the instant special terms and conditions. However, the lower court did not accept it for the following reasons.

Defendant 1 left the vehicle on his own without getting off or stopping the vehicle or stopping the vehicle. The concept of “driving as prescribed by the Road Traffic Act” includes not only the case where the vehicle is actually driven on the road but also the case where the vehicle is temporarily stopped for a temporary purpose. The Road Traffic Act, including the provisions of Article 2 (Definition), uses the “stop” and “temporary stop.” In light of the purport of the exemption of insurance money by distinguishing the vehicle from the accident during the instant special terms and conditions, the “stop” under the said terms and conditions should be interpreted as limited to the extent that the driver left the vehicle to the extent that it is impossible to immediately drive the vehicle and the “stop” and its legal assessment are identical or similar to that of the vehicle.

In full view of these circumstances, it is difficult to deem that the instant automobile was in a stop stipulated in the special terms and conditions at the time of the accident, and rather, it is reasonable to deem that the instant automobile was still in a temporary stop.

B. However, the lower judgment is difficult to accept for the following reasons.

(1) Article 2 of the Road Traffic Act provides for the definition of parking, stopping, driving, and temporary suspension of a vehicle. The term “parking” means that a driver waits for passengers, gets off cargo, gets out of a vehicle, or keeps the vehicle in a state of stopping for other reasons, or a driver is unable to immediately drive the vehicle because he/she leaves the vehicle (No. 24). The term “stop” means that the driver stops the vehicle for not more than five minutes, and means that the driver stops the vehicle and the vehicle in a state of stopping other than parking (No. 25). The term “driving” means that the driver temporarily stops the wheels of the vehicle in accordance with its original method of use (No. 26). The term “temporary stop” means that the driver temporarily stops the wheels of the vehicle (No. 30).

Article 32 (Prohibition of Stopping and Parking Motor Vehicles) of the Road Traffic Act (Prohibition of Stopping and Parking Motor Vehicles) provides that “Where a bus driver stops or parks a motor vehicle in order to load or unload passengers at the bus stops along the service route, the driver of the motor vehicle shall temporarily stop the motor vehicle before reaching the school bus and confirms the safety of the motor vehicle before reaching the school bus” (Article 32). In addition, Article 51 (1) of the same Act provides that “Where the school bus stops on the road and stops temporarily in order to prevent danger” (Article 32) of the same Act provides that “the driver of the motor vehicle driving along the lane where the school bus stops on the road, and the driver of the motor vehicle immediately adjacent to the lane shall temporarily stop the motor vehicle before reaching the school bus.”

(2) The instant special terms and conditions exclude the case where an accident occurred while a registered insured and his/her spouse drives a motor vehicle, other than an insured motor vehicle, and excludes the case where “in the course of driving” is “in the course of parking or stopping.” The term “in the course of driving” excluding the case of an accident that occurs during the course of parking or stopping, which cannot be seen as an accident from one’s own danger, in order to ensure the risk of actual driving. The term “driving, parking or stopping” used in the said comprehensive motor vehicle insurance contract can be deemed to be premised on

In full view of the provisions of the Road Traffic Act and the purport of the instant special terms and conditions, cases where a driver gets off a vehicle in order to let passengers get off the vehicle shall be deemed to fall under the stopping stipulated in the instant special terms and conditions. To the extent that it can be seen as similar to the parking, it is unreasonable in light of the language and structure of the provisions on parking and stopping. Since Defendant 1’s act of stopping a vehicle is intended to let Defendant 3 get off the vehicle, such a stop is deemed to fall under the stopping condition, and the instant accident can be seen as an accident that occurred during the stopping.

(3) Nevertheless, the lower court erred by misapprehending the legal doctrine on the interpretation of stopping under the insurance terms and conditions, thereby adversely affecting the conclusion of the judgment.

4. Whether the defendant was exempted from the insurance for malicious damage (the plaintiff's ground of appeal No. 2)

A. The Plaintiff asserts that the exemption clause among the insurance contracts for Defendant Meritorious Damage Insurance and the insurance contracts for Defendant 3, on the premise that the accident in this case is an accident occurring during stopping, if the accident in this case is deemed to have occurred during stopping, the damage amount exceeding the liability insurance amount cannot be exempted. However, the lower court determined that the Defendant 1, the instant driver, was exempt from liability insurance pursuant to the limited driving special terms and conditions of the registered insured, on the ground that the Defendant 1, as the instant driver, was not the registered insured at the time of the accident, thereby exceeding the liability insurance amount.

B. The lower court’s determination on the assertion of exemption from the Defendant Meritorious Damage Insurance is irrelevant to whether the exemption clause applies since the driver of the instant motor vehicle is not the registered insured, and whether the instant accident occurred while stopping. Unlike the lower court’s determination, it cannot affect the part of the claim for the Defendant Meritorious Damage Insurance, even if the instant accident occurred while stopping. The Plaintiff’s allegation in this part of the grounds of appeal cannot be accepted.

5. Conclusion

The part of the judgment of the court below against Defendant Barun Insurance is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The Plaintiff’s appeal is dismissed as it is without merit. The costs of appeal by the Plaintiff are assessed against the Plaintiff. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Chang-suk (Presiding Justice)