[1] Matters to be considered in interpreting the terms and conditions

[2] The case holding that the above "Lessee" refers to the party who entered into a lease contract with the lease company regardless of the name of the lease contract, where the insurer has agreed to waive the claim for damages acquired in accordance with the principle of subrogation by the insurer or abandonment in respect of the damage caused by the negligence of the lessee, his agent or employee in respect of the leased article, in a comprehensive movable insurance contract with the lease company to compensate for the damage caused by the damage of the leased article

[1] In general, in interpreting the terms and conditions of an insurance contract, where the content of the terms and conditions is unclear or the intent of the parties is inconsistent, the parties’ written terms and conditions should be taken into account such as the content of the insurance contract, the process and process of the parties’ conclusion of the insurance contract, and the practice of the insurance company’s practice.

[2] The case holding that the above "Lessee" refers to the party who entered into a lease contract with the lease company regardless of the name of the lease contract, where the insurer has agreed to waive the claim for damages acquired in accordance with the principle of subrogation by the insurer or abandonment in respect of the damage caused by the negligence of the lessee, his agent, or employee in respect of the leased article, in a comprehensive movable insurance contract with the lease company to compensate for the damage caused by the damage of the leased article

[1] Article 105 of the Civil Act / [2] Article 105 of the Civil Act, Article 2 subparagraph 10 of the Specialized Credit Financial Business Act

Dongbu Fire Marine Insurance Co., Ltd. (Attorney Choi Sung-sung, Counsel for defendant-appellant)

Defendant 1 and one other (Attorney Park Jong-sik, Counsel for the defendant-appellant)

Seoul District Court Decision 99Na29809 delivered on September 1, 1999

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

1. As to the claim against the defendant 1

A. The summary of fact-finding and judgment of the court below is as follows.

(1) On November 11, 1996, Defendant 1, who operated the basic file work, entered into a contract for facility leasing (hereinafter “lease”) of this case’s heavy equipment in the name of Nonparty 1 (hereinafter “non-party 1”) with the non-party 1, one’s own shape, and had the non-party 2, a driver of this case, operate the equipment of this case at his own expense when paying leasing fees to the non-party 1 at his own expense. The defendant 2, a driver of this case’s construction site of this case’s construction site of this case’s construction site of this case’s construction site from Ulsan Metropolitan City, which caused the damage to the non-party 1’s company during the period of insurance site of this case’s construction site of this case’s construction site of Ulsan-gu (hereinafter “the defendant company”), which caused the damage to the non-party 1, which caused the damage to the non-party 1 by using the equipment of this case’s total equipment of this case’s repair site of this case’s 9 days.

(2) According to the above facts, since the damage accident of the heavy equipment in this case occurred due to the mistake of the above non-party 2, defendant 1 is liable for damages caused by the damage of the heavy equipment in this case to the non-party company as the user of the non-party 2, and the non-party company acquired the right to claim damages against the above defendant within the extent of the insurance amount paid by the plaintiff pursuant to Article 682 of the Commercial Act by paying the insurance money under the above insurance contract to the non-party company. Thus, the above defendant has a duty to claim for the insurance amount, etc. paid to the non-party company

(3) However, according to Article 7 of the Terms and Conditions on Special Cases concerning Rental Articles, which the Plaintiff agreed to apply to the conclusion of the instant insurance contract with the non-party company, the Plaintiff, an insurer, concluded a lease contract with the non-party company on November 11, 1996 under the name of the non-party company, and provided the non-party 3 real estate, one of its wife, as collateral, for the damage incurred by the lessee, his agent, or employee’s negligence (excluding negligence) to the lessee under the lease contract. Meanwhile, on November 1, 1996, the Defendant 1 attempted to import and operate the instant heavy equipment in the form of the lease contract and to operate it at the construction site. However, upon the failure of payment in 195, the Plaintiff concluded the lease contract with the non-party company’s employees and the non-party 1, one of whom was the owner of the instant movable property, and provided the Plaintiff with the aforementioned comprehensive insurance contract as collateral to cover all the risks and losses incurred by the Defendant’s acquisition and loss of the instant equipment.

(4) In light of the circumstances leading up to the conclusion of the lease agreement on the heavy equipment of this case recognized earlier and the fact that Defendant 1 used the heavy equipment of this case while paying rent and insurance premium for the heavy equipment of this case, and the above comprehensive movable property insurance contract on the heavy equipment of this case has the nature of non-life insurance, etc., the person who actually leased the equipment of this case under the lease agreement concluded with the non-party company is not the non-party 1, the nominal owner under the lease agreement, but the non-party 1. Accordingly, Defendant 1, as the substantial party to the above lease agreement, constitutes the lessee of the equipment of this case under Article 7 of the above special terms and conditions, and as to the damage of heavy equipment of this case caused by the negligence of the above non-party 2, who is his employee, even if the plaintiff paid the insurance money for the damage of the heavy equipment of this case to the non-party company of this case, the plaintiff cannot exercise the right to indemnity against the above defendant under Article 7 of the above special terms and conditions.

B. In general, in interpreting the terms and conditions of an insurance contract, if the content of the terms and conditions is not clear or the intent of the parties is not different, such circumstances should be taken into account as the content of the insurance contract and the terms and conditions which the parties consider as the content of the insurance contract, the process and process of the parties to the insurance contract, and the practice

Examining the relevant evidence in light of the records in accordance with the above legal principles, the court below's determination that "Lessee" under Article 7 of the above special terms and conditions, which the plaintiff company provided to waive the claim for damages in the insurance contract of this case, refers to the party who entered into a lease contract with the above non-party company regardless of the name in the lease contract, is just and acceptable, and it is not erroneous in the misapprehension of legal principles as to the insurance contract of this case, and there is no error in the misapprehension of legal principles as to the special terms and conditions. Further, the judgment of the court below that the defendant 1 may be deemed as the representative of the non-party 1, is added with additional explanation in dismissing the plaintiff's claim of this case against the defendant 1, and as long as the judgment of the court below is deemed legitimate, it cannot affect the conclusion of the judgment as to this part of the grounds for appeal.

2. As to the claim against the defendant Daesung Co., Ltd.

A. The lower court acknowledged the facts as indicated in its reasoning regarding the contents of the instant subcontract contract concluded between the Defendant 1 and the Defendant Company as to the scope of direction and supervision as to the progress of construction with respect to Defendant 1, and determined that the Plaintiff’s claim in the instant case premised on the premise that the Defendant Company is the user of Defendant 1 or Nonparty 2 who driven the equipment in the instant case, on the ground that it is difficult to view that the Defendant Company reserved the specific direction and supervision right regarding the progress and method of the instant file construction, and managed the construction itself by directly ordering, supervising, supervising, and encouraging the operation and method of the instant file construction, and there is no other evidence to acknowledge it.

B. Examining relevant evidence in light of the records, we affirm the fact-finding and judgment of the court below as just, and there is no error in the misapprehension of facts against the rules of evidence or in the misapprehension of legal principles as to employer liability, as alleged in the grounds of appeal.

3. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yoon Jae-sik (Presiding Justice)