Counterclaim Plaintiff

[Defendant-Appellee] Insurance Co., Ltd. (Law Firm Seoman, Attorney Yang Gyeong-soo, Counsel for defendant-appellee)

April 15, 2009

Gwangju District Court Decision 2006Da32694, 2006Gadan114688 Decided November 25, 2008

1. Following an appeal by a counterclaim defendant, the part concerning the counterclaim in the judgment of the first instance shall be modified as follows:

(1) The counterclaim defendant shall pay to the counterclaim 18,153,161 won and 5,000,000 won among them, 5% per annum from March 3, 2006 to November 25, 2008; 20% per annum from the next day to the day of full payment; 13,153,161 won per annum from March 3, 2006 to June 17, 2009 to the day of full payment; 5% per annum from the next day to the day of full payment; and 20% per annum from the next day to the day of full payment.

(2) The remainder of the counterclaim is dismissed.

2. The appeal filed by the Counterclaim Plaintiff is dismissed.

3. 4/5 out of the total costs of the lawsuit shall be borne by the Counterclaim Defendant, and the remainder by the Counterclaim Defendant.

4. Paragraph (1) of Article 1 may be provisionally executed.

Claim of counterclaim

The judgment that the counterclaim Defendant shall pay to the counterclaim 107,478,460 won and the amount equivalent to 5% per annum from March 3, 2006 to the day on which a duplicate of the complaint was served, and 20% per annum from the next day to the day of complete payment (the counterclaim Defendant withdrawn the principal suit in this court).

Purport of appeal

Of the judgment of the court of first instance, the part against the plaintiff is revoked. The defendant of the counter-party shall pay to the plaintiff 89,281,846 won per annum from March 3, 2006 to the judgment of the court of first instance, and the amount equivalent to 20% per annum from the next day to the date of full payment (the part against the plaintiff 89,281,846 won and the amount equivalent to 89,281,846 won per annum from the next day to the date of the judgment of the court of first instance). The part against the plaintiff 96,706,90 won per annum against the whole principal, while the part against the plaintiff 9,706,90 won per annum against the plaintiff 9,706,90 won per annum against the whole principal among the part against the plaintiff 1 in the judgment of first instance, but the calculation error appears to have been made in light

The counterclaim defendant: The judgment of the court of first instance that the counterclaim defendant lost shall be revoked, and the counterclaim claim of the counterclaim plaintiff falling under the revoked part shall be dismissed.

1. The summary of the case and the facts premised on the case

A. Case summary

The counterclaim claim of this case is a case where the counterclaim, who was faced with an illegal parking vehicle parked in the parking-prohibited area while driving a vehicle on the road while driving the vehicle on the road, is seeking compensation for damages based on the victim's direct right under Article 724(2) of the Commercial Act against the counterclaim defendant, the insurer of the comprehensive motor vehicle insurance for the illegal parking vehicle.

The judgment of the first instance partially accepted the claim of the Counterclaim Plaintiff, and the Counterclaim Plaintiff and the Counterclaim Defendant appealed against their respective losing parts.

B. Presumed factual basis

【Evidence A-1, 2, A-3-1 through 16, B-1, 3, 4, and the purport of the whole pleadings

(1) Around March 15:00 on March 3, 2006, Nonparty 2, who served as the chief of the headquarters of Nonparty 1 NFD, parked the vehicle (vehicle number omitted), who owned Nonparty 1, at the right edge of the fourth line of the road of the fourth line in front of that of Nonparty 1 and the fourth line in front of that of the fourth line located in the south-gu Seoul Metropolitan City. At this point, Nonparty 2, who was in charge of the headquarters of Nonparty 1 NFD, was parked at the right edge of the road of the fourth line in front of that region. There is a place where a tree group is low between delivery as a parking-prohibited zone and the road.

(2) At around 15:00 on March 3, 2006, the Counterclaim Lessee driven an Ortoba (Otoba omitted) and brought three lanes out of the four-lanes in front of the non-party 1 NY and the four-lanes in front of the south-gu Seoul metropolitan area from Gwangju to Gwangju metropolitan area due to soil sand that was scattered on the road while driving at a speed of about 40 km in speed from Gwangju metropolitan area, and caused damage, such as the right-hand bridge, etc., on the part of the part of the vehicle left side of the counter-party 1, leading together with the Ortoba, while moving along at a speed of about 40 km in speed.

(3) The counterclaim Defendant is an insurer who entered into a comprehensive automobile insurance contract with Nonparty 1 regarding the insurance period from December 1, 2005 to December 1, 2006 with respect to the vehicle of the counterclaim Defendant. The automobile insurance contract applicable to this insurance contract provides that the insured is liable for damages sustained by the insured’s death or injury due to the insured’s accident occurred during the possession, use, and management of the insured automobile, or by taking legal liability for damages.

2. Whether liability for damages arises and restrictions thereon;

(a) Occurrence of liability for damages;

In addition to the above premise, in light of the situation that the illegally parked vehicle on the road can be seen as a kind of obstacles from the standpoint of the driver of the vehicle driving on the road, it is reasonable to deem that Nonparty 2, who is the employee of Nonparty 1, was driving on the road where Nonparty 2 had done so if he had not parked the vehicle in a place designated as an area subject to prohibition of parking under the Road Traffic Act, he would have been able to drive on the road, driving on the road, driving on the road on the road surface, and the Counterclaim Plaintiff, who was dissat down on the road surface, has been deprived of the vehicle installed on the side of the road. Therefore, it is reasonable to deem that Nonparty 1, the owner of the counter-party 1, the owner of the counter-party 1, is liable to compensate the Lessee for the damages caused by the instant accident.

B. Limitation of liability for damages

On the other hand, according to the evidence mentioned above, since an emergency, etc. was turned on the vehicle of the counterclaim, and sand, etc. was scattered on the road surface, it was erroneous in failing to observe the road condition and prevent the accident. This error of the counterclaim became the main cause of the occurrence of the accident in this case. Therefore, it is reasonable to consider the fault ratio of the counterclaim in calculating the amount of damages to be compensated by the counterclaim, but it is reasonable to 90%.

3. Scope of damages.

(a) The actual income of the Lessee;

(1) Facts of recognition

[Evidence] 2-1, 2-2, 7, 11-1 and 2, and the result of commissioning the physical examination of the head of ○○ University Hospital, the purport of the entire pleadings

(A) Personal information

Gender: Date of birth for male: omitted.

Age at the time of an accident: Name of lease remaining between 38 and 3 months: 38.59

(B) Career and occupation: From February 1, 1997, the Lessee was engaged in the precious metal milling industry with the trade name, which is the dump main, and its revenue is confirmed to have been mostly dependent on the individual’s labor and the capital profit was almost rare.

(C) Import level and income status

1) From March 3, 2006 to December 31, 2006, which is the date of the instant accident: 1,454,260 won (=monthly wage 1,381,493 + Annual special pay 873,210/12) which is the statistical income of a male with a career of not less than five years but less than ten years, among workers engaged in precision, tax and water craft, in a report on the actual status quo of labor of small-scale enterprises issued by the Ministry of Labor in 2005.

2) The maximum working age from the following day to the maximum working age: Monthly 2,134,083 won (=monthly wage of 1,773,000 + Annual special pay of 4,33,000 won/12) which is the statistical income of a male with career experience of not less than five years but less than ten years among those engaged in metal and related materials, as a result of an investigation on the actual status of work performed by enterprises (No. 741) issued by the Ministry of Labor in 2007.

(D) Maximum working age: by the date on which he/she reaches 60 years of age ( November 21, 2027) (the fact that he/she has no dispute)

(E) Period of hospitalization: The Lessee was hospitalized for 51 days in total from March 3, 2006 to April 12, 2006 (41 days), from September 20, 2006 to September 25, 2006 (6 days), from July 30, 2007 to August 2, 2007 (4 days) (i.e., the date of the instant accident for calculation convenience).

(f)The loss rate of residual disability and labor capacity;

(i)the aftermath disability and rate of loss of labor capacity by disability;

(a) The right high-ranking engine failure (permanent disability): 15 percent;

(b) The left-hand eromatic impairment (or territorial disorder): 16 per cent

(2) The pro rata disability and rate of loss of labour capacity by period;

A) From the date of the instant accident to April 22, 2006, the hospitalization period: 100%

B) Until November 21, 2027, the maximum working age after discharge: 28.6% of the duplicate disability rate

(2) Based on the facts recognized as above and the facts assessed by the court, the Plaintiff calculated the total assessed value of the lost labor ability up to 21 years and 8 months (=260 months) from November 21, 2027, based on the rate of 5/12% per month, to the present price at the time of the instant accident, as follows (However, according to the method sought by the Plaintiff, less than the original and the last month, and less than the middle month shall be discarded, and the calculation period for calculation convenience shall include the calculation period in which the amount of daily income is smaller than the actual income).

(A) For one month from March 3, 2006 to April 2, 2006, the date of the accident.

1,454,260 won ¡¿ 100% ¡¿ 0.958 =1,448,152 won

(B) for nine months from the day following that date until January 2, 2007

1,454,260 won ¡¿ 28.6% ¡¿ 9.773-0.958) =3,652,387 won

(C) 250 months from November 21, 2027, the maximum working age following that date.

2,134,083 won ¡¿ 28.6% 】 (175.8928-9.773) =1,388,220 won

(d) Total KRW 106,488,759 (=1,448,152 + 3,652,387 + 101,388,220)

(b) Expenses for medical treatment;

(a) Evidence: B-1 to 18

(2) Amount: 8,00,050 won = 53,470 + 57,57, 490 + 63,200 + 112,10 + 15,370 + 15,580 + 3,00 + 750 + 14,750 + 37,810 + 37,52,60 + 600 + 217,240 + 240543,00 + 149,490 + 149,490 + 623,560832,220 + 420 + 420 + 420 + 45,910 + 10,531,154 won with other treatment expenses of the Lessee. However, the above argument by the Lessee is without merit, since there is no evidence to acknowledge the above argument by the Lessee.

(c) Expenses for future treatment;

(i) sexual traffic areas;

(A) Evidence: Results of commissioning the physical examination of the director of ○ University Hospital;

(b) Amount: 5,116,400 won (e.g. antis. antis. antis.)

(C) Calculation (Inasmuch as there is no assertion or proof that the Counterclaim incurred expenses by the date of closing argument in the instant case, it is deemed that performed on July 2, 2009, which was after the sentencing of this case, for the convenience of calculation).

4,385,485 won [ = 5,16,400 won ¡¿ 1/300 (1 + 0.05/12 x 40)];

(ii)the external area;

(a)an operation to dump cump cump to the right;

(1) Evidence: Results from commissioning the physical examination of the director of the ○ University Hospital.

(2) Timing and amount: 9,025,200 won on April 2, 2018, and 9,769,200 won on April 2, 2028.

(3) Calculation

5,626,098 won [ = 9,025,200 won ¡¿ 1/1/ (1 +05/12 x 145];

4,642,788 won = 9,769,200 won ¡¿ 1/1/ (1 +05/12 x 265))

(B)an operation to rupture the left-hand upper part of the aggregate;

(1) Evidence: Results from commissioning the physical examination of the director of the ○ University Hospital.

(2) Amount: 2,786,510 won.

③ Calculation (Inasmuch as there is no assertion or proof that the Counterclaim incurred expenses by the date of the closing of argument in the instant case, it is deemed that the expenses were disbursed on July 2, 2009, which is after the sentencing of this case, for the convenience of calculation).

2,388,437 won [=2,786,510 won ¡¿ 1/30 (1 + 0.05/12 x 40)];

(c) Total amount: 17,042,808 won;

D. As to the ground of open guard

[Dissenting Plaintiff’s Claim]

The Lessee asserts that the accident in this case requires a single adult female family care for at least two months.

However, there is no evidence to prove that the Lessee needs to open one adult woman for two months. Therefore, the above assertion by the Lessee is without merit.

E. As to the claim for medical expenses under the terms and conditions

[Dissenting Plaintiff’s Claim]

According to the insurance terms and conditions of the counterclaim defendant, the counterclaim defendant asserts that the amount corresponding to the cost of treatment should be paid if the amount after offsetting according to the ratio of fault on the part of the victim in the case of the counterclaim II, the amount after offsetting according to the ratio of fault on the part of the victim in the case of the counterclaim defendant.

However, the payment standard of insurance proceeds, as alleged in the counterclaim under the insurance clauses of the counterclaim defendant, applies to cases where the counterclaim defendant voluntarily pays insurance proceeds to the victim in accordance with the payment standard, and where the counterclaim defendant asserts losses incurred to the victim and refuses to pay insurance proceeds in accordance with the payment standard and then the victim, etc. files a lawsuit, the payment cannot be applied (in accordance with the provisions of the insurance clauses of the counterclaim defendant, the amount calculated according to the payment standard of insurance proceeds shall be paid, and where a lawsuit is filed, the insured shall be paid to the claimant for damage according to the final judgment of the

F. Damages after offsetting negligence

(1) The ratio of liability of the counterclaim defendant: 10%;

(2) Calculation

Property damage 131,531,617 won (106,48,759 won for lost income + 8,00,050 won for medical treatment + 17,042,808 won for future care) ¡¿10% =13,153,161 won

(g) Consolation money;

(1) Grounds: The age of the Counterclaim, the course and result of the instant accident, the degree of the injury and the injury to the future, the rate of negligence, the treatment period, and other various circumstances shown in the arguments.

(b) Amount determined: 5,000,000 won;

4. Conclusion

Therefore, the counterclaim defendant shall claim against the counterclaim for damages amounting to 18,153,161 won (13,153,161 won + 5,000,000 won) and damages amounting to 5,00,000 won from March 3, 2006, which is the date of the accident in this case, for disputes as to the existence and scope of the counterclaim defendant's obligation to pay damages, 5% per annum under the Civil Act until November 25, 2008, which is the date of the judgment of the first instance, and 20% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings until the date of full payment, 13,153,161 won, and 161 won, the counterclaim defendant shall accept the judgment of the court of first instance as to the existence and scope of the counterclaim defendant's obligation to pay damages from March 3, 2006 to the date of partial alteration of the judgment below's grounds for appeal.

Doctrine (Presiding Judge) The degree of merit of judges