In a case where the buyer of a vehicle entered into a comprehensive automobile insurance contract with the named insured as the seller with the consent of the seller, but the seller is deemed to lose the control over the operation of the vehicle, whether the buyer can be deemed an insured person with the consent of the seller (negative)

Even if the comprehensive automobile insurance contract entered into between the buyer and the insurer with the owner of the vehicle as the buyer with the consent of the seller is valid, in cases where the seller recognizes that the driver has lost the operation control relationship and the insurable benefits for the vehicle, the buyer shall not be deemed the person using or managing the vehicle with the consent of the registered insured as prescribed by the terms and conditions, and in cases where the seller has transferred the vehicle to the buyer as well as the buyer has transferred the vehicle to the buyer before the vehicle accident concerned, the seller shall be deemed to have lost the operation control and the insurable benefits for the vehicle at the time of the accident, unless there are special circumstances.

Articles 679 and 719 of the Commercial Act, Article 3 of the Guarantee of Automobile Accident Compensation Act

Supreme Court Decision 90Da7203 Delivered on December 11, 1990 (Gong1991, 457) Supreme Court Decision 90Da7708 Delivered on December 11, 1990 (Gong1991, 461) Supreme Court Decision 91Da4803 Delivered on April 10, 1992 (Gong192, 1545) (Gong1992, 155) 92Da3021 Delivered on December 22, 1992

Hyundai Marine Fire Insurance Co., Ltd. (Attorney Kim Young-chul, Counsel for the defendant-appellant)

Defendant 1 and one other

Gwangju High Court Decision 95Na4062 delivered on December 6, 1995

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

We examine the grounds of appeal.

On the first ground for appeal

The court below acknowledged, based on macro evidence, that Defendant 2 entered into a comprehensive automobile insurance contract for the instant vehicle between the Plaintiff and the Plaintiff, at the time that he received the instant vehicle from Defendant 1, the seller, but there still remains in the name of ownership without paying the balance, and thus, Defendant 1 received the resident registration certificate and the seal from Defendant 1 according to the Plaintiff’s employee’s proposal, and Defendant 2 as the named insured and Defendant 2 as the principal driver. In light of the records of this case, the court below’s findings of fact are just and acceptable, and there is no error of law in violation of the rules of evidence, such as theory of lawsuit, in the process of this case.

Furthermore, the court below held that the actual insured is Defendant 2, who is the actual owner, and therefore, according to the facts established by the court below, Defendant 1 still entered into a contract with the operator of the vehicle of this case as the registered insured at the time of the conclusion of the insurance contract. Thus, barring any special circumstance, Defendant 1's relation to the insurance company is the name of the insured, and it cannot be viewed any different merely because the court below acknowledged that Defendant 2 is the actual insured. Thus, the court below's judgment that the above judgment of the court below is erroneous in the misapprehension of legal principles as to the registered insured under the insurance contract. However, the court below determined that the insurance contract of this case was effective even if Defendant 1 is the registered insured, and the judgment of the court below is just, and the ground of appeal disputing this point is justified.

As to the second and third points

The court below rejected the plaintiff's assertion that the defendant 1 transferred the instant vehicle to the defendant 2 and notified the plaintiff of the fact of transfer or obtained the consent of transfer from the plaintiff, and therefore, the defendant 1 is the registered insured under the insurance contract of this case. Since the defendant 2 is the person who uses or manages the instant vehicle with the consent from the defendant 2, the defendant 2 is the consented insured. Thus, even if the defendant 2 did not follow the procedure for the succession of rights and duties under the insurance contract after the completion of the transfer registration of ownership as to the instant vehicle, he did not affect the status as the insured under the insurance contract.

However, even if an effective insurance contract is concluded by the seller, in cases where it is recognized that the seller has lost the operating control relationship with the vehicle and the insurable interest, the buyer cannot be deemed a person using or managing the vehicle with the consent of the registered insured as stipulated in the terms and conditions. According to the judgment of the court below, the defendant 1 transferred the vehicle to the defendant 2 before the accident in this case. Thus, unless there are special circumstances, the defendant 1 should be deemed to have lost the operating control and insurable interest with respect to the vehicle at the time of the accident in this case. The decision of the court below 90Da7708 delivered on December 11, 1990 is related to the issue regarding which the seller's operating control has not been lost, and therefore, it cannot be a proper precedent to this case.

Therefore, the court below's rejection of the plaintiff's assertion solely for the reasons stated in its holding is erroneous in the misapprehension of legal principles as to the status of the beneficiary when the subject matter of insurance is transferred, and such illegality affected the conclusion of the judgment, which points out this error.

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

Justices Kim Jong-soo (Presiding Justice)