(영문) 대구지방법원 2019.10.17. 선고 2018가합208226 판결

1. As to the accident described in the attached list, it is confirmed that there is no liability of the Plaintiff (Counterclaim Defendant) for damages against the Defendant (Counterclaim Plaintiff).

2. All the Defendant (Counterclaim Plaintiff)’s counterclaims are dismissed.

3. The costs of lawsuit are assessed against the Defendant (Counterclaim Plaintiff) by aggregating the principal lawsuit and counterclaim.

Purport of claim

Main Office: It is as set forth in the Disposition.

Counterclaim: The Plaintiff (Counterclaim Defendant; hereinafter referred to as the “Plaintiff”) pays 125,00,000 won to the Defendant (Counterclaim Plaintiff; hereinafter referred to as the “Defendant”) and 120,000,000 won to the Defendant C, and 5% per annum from March 13, 2018 to the rendering date of the instant judgment, and 15% per annum from the next day to the day of full payment.

Reasons

A principal lawsuit and counterclaim shall also be deemed a principal lawsuit and counterclaim.

1. Basic facts

A. The plaintiff is an urban bus transportation business entity that operates the passenger transportation business under the Passenger Transport Service Act, and is the owner of D urban bus (hereinafter referred to as the "Plaintiff's vehicle"), and E is the driver belonging to the plaintiff.

B. At around 22:04 on March 13, 2018, E, while driving the Plaintiff’s vehicle in front of the F Building in Busan Metropolitan City along one-lane of the two-lane radius from the G Ganmun-gu boundary, he was facing the Plaintiff’s vehicle with the front wheels part of the Plaintiff’s vehicle while crossing the road from the right side of the Plaintiff’s vehicle to the left side (hereinafter “instant accident”).

C. H died on the same day on the same day due to the instant accident, around 23:53, and the Defendants were the parents of the deceased H (hereinafter “the deceased”).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 4 (including each number, if any; hereinafter the same shall apply), Eul evidence Nos. 1 through 5, 7, 10, 11 and 12, or the purport of the whole pleadings

2. Summary of the parties’ assertion

A. The plaintiff's assertion

The instant accident occurred while the Deceased attempted a sudden crossing while in the normal progress of E, and E could not have predicted or avoided the instant accident. Therefore, the instant accident is not the negligence of E, but the accident occurred due to the total negligence of the Deceased, and there is no obligation to pay the Plaintiff’s damages to the Defendants.

B. The defendants' assertion

The instant accident occurred due to negligence, such as violation of the duty of front-time watch of the Plaintiff, the driver of the Plaintiff’s vehicle, and thus, the Plaintiff is liable to compensate the Defendants for the damages caused by the instant accident pursuant to Article 3 of the Guarantee of Automobile Accident Compensation Act. Therefore, the Plaintiff is liable to Defendant B for the compensation of KRW 248,281,440 [23,281,440 [23,281,440 [386,562,880 [380 won per lost income of the deceased + 60,000 won for consolation money of the Deceased + 60,000] + 20,000 + funeral expenses 5,00,000]; 243,281,40 won for the Plaintiff’s vehicle owner; 281,40 won for inheritance; 281,440 won [386,56,200,000 won for inheritance and delay damages of the Deceased + 2000,6000 won for inheritance and damages]

3. Determination

A. Relevant legal principles

1) The main text of Article 3 of the Guarantee of Automobile Accident Compensation Act provides that, in principle, a person who operates an automobile for his/her own sake shall be liable to compensate for damages in cases where he/she has killed or injured another person by the operation thereof, and the driver shall not be negligent in paying attention to the operation of the automobile. However, this provision provides that, in cases where a person who is not a passenger has died or injured, he/she shall not be negligent in paying attention to the operation of the automobile, and where he/she proves that he/she or a third person other than his/her own or his/her driver has intentionally or negligently caused any defect in the structure or skills of the automobile, and that if a person who is not a passenger of the vehicle or a passenger of another motor vehicle is killed or injured, he/she shall not be liable to compensate for the death or injury of a person caused by the vehicle accident, unless he/she has neglected his/her duty of care to the operator or the driver and it proves that there is no defect in the structure or skills of the vehicle.

2) A driver of a motor vehicle cannot be deemed to have a duty of care to anticipate and prepare for an occurrence of an exceptional situation that is sufficiently satisfied and difficult to anticipate by performing his/her duty of care to the extent of avoiding the outcome in preparation for an ordinary predicted situation (see, e.g., Supreme Court Decisions 85Do833, Jul. 9, 1985). In other words, a driver of a motor vehicle who drives on the road is not liable for a breach of his/her duty of care to the driver insofar as the driver of the other motor vehicle trusts the other motor vehicle to comply with all traffic regulations and operates the motor vehicle based on such trust. However, the above trust principle is excluded in cases where there are special circumstances where the other motor vehicle driver cannot be trusted that the other motor vehicle driver is operating or walking the motor vehicle in compliance with the road traffic-related regulations (see, e.g., Supreme Court Decisions 2002Do4134, Oct. 11, 2002; 2010Do4078, Jul. 29, 2010).

B. In the instant case

In light of the above legal principles, in light of the following facts and circumstances, it is difficult to recognize that E was negligent in the accident of this case, and rather, it is reasonable to deem that the accident of this case was caused by the deceased’s negligence. Meanwhile, it is deemed that the Plaintiff’s vehicle did not have any structural defect or functional impairment at the time of the accident of this case.

① The place where the instant accident occurred is a two-lane road, and E is operating on the one-lane of the said road, but the two-lane is a situation in which the operation of the vehicle was actually possible only one-lane due to the illegal parking of the vehicle, etc., and the two-lane is not driving.

② The time of occurrence of the instant accident was ten hours at night, and it was not easy to secure the view as low.

③ E operates the Plaintiff vehicle in compliance with the restricted speed, and the place where the instant accident occurred was 16.9m away from the crosswalk, and thus, it was difficult for pedestrians to easily predict the fact that pedestrians are crossing the Plaintiff vehicle without permission, rather than the crosswalk.

④ The Deceased was used in the direction of the roadways that he operated on the side of the vehicle parked in the two-lanes for reasons not known to E, and the time taken by the Deceased in India was around 22:04:23, and the time when the Deceased was not visible to the vehicle parked in India, 22:04:24, and 22:04:24, the time when the Deceased was not visible to the vehicle parked in the deceased. The time when the Deceased appears to go to the direction of the Plaintiff’s vehicle operated in excess of the parked vehicle is the same time, and the time when E was 2:04:25, while the time when the Deceased was turned to the vehicular road, the accident of this case occurred.

⑤ E discovered the Deceased and immediately operated a dong, but it was too short from the time when the Deceased was transferred to a bus front side, and the time he discovered and she embling on the bus. Therefore, the Deceased was not faced and shocked without being faced.

6. There is no evidence to deem that E violated or caused the instant accident due to its excessive speed, and it is also difficult to deem that E neglected the duty to stop in front of the crosswalk. In addition, the circumstance that E did not temporarily stop in front of the crosswalk is not the causal link with the instant accident.

7) On July 20, 2018, in the case of violation of the Act on Special Cases concerning the Settlement of Traffic Accidents (Death or Injury) by the Daegu District Court Decision 2018Da7791 (Seoul District Court Decision 2018Da7791), E received a summary order of KRW 5 million from the above court due to criminal facts. E claimed formal trial against the above summary order, and in the case of violation of the Act on Special Cases concerning the Settlement of Traffic Accidents (Death or Injury) by the Daegu District Court 2018DaMa832 (Seoul District Court 2018DaMa832), the above court rendered a judgment not guilty of E on the ground that “It is difficult to view that E was proven without any reasonable doubt that the instant accident occurred due to negligence in breach of the duty of care in the course of duty”. Although the above judgment was under the Daegu District Court 2019No43, the appellate court dismissed the prosecutor’s appeal on July 4, 2019.

Therefore, it is recognized that the accident of this case has a reason for exemption under Article 3 (1) of the Automobile Accident Compensation Guarantee Act. Thus, there is no obligation to pay damages to the Defendants in relation to the accident of this case, and as long as the Defendants dispute the existence of damage claim, the Plaintiff has a benefit to seek confirmation. Ultimately, the Plaintiff’s claim seeking confirmation of non-existence of damage claim is reasonable, and all the Defendants’ claim and counterclaim claim are rejected on different premise.

4. Conclusion

Therefore, the plaintiff's main claim is justified, and all of the defendants' counterclaims are dismissed. It is so decided as per Disposition.