(영문) 서울고등법원 2008.6.27.선고 2005나107277 판결

1. Of the judgment of the court of first instance, the part against the defendant ordering payment exceeding the amount equivalent to 200,000,000 won to the plaintiff and 5% per annum from July 8, 2004 to June 27, 2008, and 20% per annum from the next day to the day of full payment, shall be revoked, and the plaintiff's claim corresponding to the above revoked part shall be dismissed.

2. The defendant's remaining appeal is dismissed.

3. The total costs of the lawsuit shall be ten minutes, which shall be borne by the plaintiff, and the remainder by the defendant.

Purport of claim and appeal

1. Purport of claim

The defendant 200,000,000 won and a copy of the complaint of this case from July 8, 2004 to the plaintiff

5% per annum and 20% per annum from the following day to the date of full payment.

H. D. Payment

2. Purport of appeal

The part against the defendant in the judgment of the first instance shall be revoked, and the plaintiff's claim corresponding to the revoked part shall be revoked.

The dismissal is dismissed.

Reasons

The reasons for the judgment of this court are as follows: Article 61 of the former Road Traffic Act (amended by Act No. 7545 of May 31, 2005). Article 23 (1) of the Enforcement Rule of the former Road Traffic Act (amended by Act No. 329 of May 30, 2006). Section 23 (1) of the former Enforcement Rule of the Road Traffic Act (amended by Ordinance of the Ministry of Government Administration and Home Affairs No. 329 of May 30, 2006). Section 61 of the same Act provides that "A" shall be deemed "A", and Article 23 (1) of the former Enforcement Rule of the Road Traffic Act (amended by Ordinance of the Ministry of Government Administration and Home Affairs No. 329 of May 30, 2006). Section 6 (b) provides that the following new judgments shall be added to the judgment of the court of first instance and Article 40 (1) of the Civil Procedure Act.

C. In addition, the defendant asserts that the right XX was lowered from the above tourist bus at the time of the second accident and was no longer in the status of passengers beyond the control scope of the operator of the above bus. Thus, the defendant is not liable for damages.

Article 3 of the Guarantee of Automobile Accident Compensation Act provides that a person who operates a motor vehicle for his/her own sake shall be liable to compensate for damage caused by the death or injury of another person due to the operation of the motor vehicle, and subparagraph 2 of the proviso provides that when the death or injury of a passenger was caused by his/her intentional act or suicide, such person shall not be liable. In cases of death or injury of a passenger due to an accident of a motor vehicle, the operator shall be liable to compensate for damage caused by the death or injury of the passenger without the consent of the relevant passenger (see Supreme Court en banc Decision 93Da6560, May 27, 1993). Article 3 proviso of the same Act provides that a person who is operating the motor vehicle shall be liable to compensate for damages caused by the death or injury of the passenger without the consent of the relevant passenger (see Supreme Court en banc Decision 97Da6560, May 27, 1993). Since the aforementioned provision provides that a person who is under operation of the motor vehicle shall be deemed to have been under the direct consent of 98 passengers and without consideration.

However, according to Gap evidence 8-3 through 11, and 13, since the first accident occurred, the door ○, a driver of the above tourist bus, stopped the above bus on the side of the expressway, and did not pay attention to safely waiting within the bus including the right XX, etc. through internal broadcasting to manage the accident. In order to look at the situation of the accident, some of passengers including the right XX, etc. from the above bus, after getting out of the bus and getting out of the bus and sending the signal on the side side of the bus and talking with them, the second accident was committed while most passengers of the above tourist bus were waiting within the bus after the first accident, and some of the passenger including the right x were waiting within the bus, but after the accident occurred on the bus, it appears that the above bus was scheduled to be stopped within the scope of the right of passengers, etc., and there was no reason to recognize that the above bus was scheduled to stop within the scope of the right of the bus after the accident occurred on the bus.

3. Conclusion

Therefore, the defendant is obligated to pay to the plaintiff the above insurance proceeds of KRW 200,00,00 and the above insurance proceeds of KRW 200,00 which the plaintiff claimed against the plaintiff from July 8, 2004, to June 27, 2008, which is the date following the decision of this court that it is reasonable for the defendant to dispute about the existence or scope of the above insurance proceeds of KRW 5% per annum under the Civil Act and 20% per annum under the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the next day to the date of full payment. Thus, the plaintiff's claim of this case of this case is justified within the above recognition scope, and the remaining claims are dismissed as without merit. The part against the defendant who ordered the plaintiff to pay the above insurance proceeds of this case in excess of the above recognition amount is revoked, and the plaintiff's claim for revocation is dismissed, and the defendant's remaining appeal is dismissed. It is so decided as per Disposition by the assent of the court below.