(영문) 춘천지방법원 2016.10.6.선고 2016가소3215 판결

2. The defendant shall pay to the plaintiff 4, 194, 584 won with 5% interest per annum from June 9, 2016 to October 6, 2016, and 15% interest per annum from the next day to the day of complete payment.

3. The plaintiff's remaining claims are dismissed.

4. 1/10 of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

5. Paragraph 1 can be provisionally executed.

Purport of claim

The defendant shall pay to the plaintiff KRW 4,524,584 as well as a copy of the complaint of this case from the next day of the service of the plaintiff.

By the day, 15% interest per annum shall be paid.

Reasons

1. Basic facts

A. On August 22, 2015, B, an executive officer or employee of a corporation A which entered into an automobile insurance contract with the Defendant, was shocked (hereinafter “the instant accident”) on the part of CMW 520d xDr passenger cars owned by the Plaintiff, which was parked while driving a vehicle in the 1stm of the Youngdong-dong, Young-dong, Busan Metropolitan City. 40,000, then parked (hereinafter “the instant accident”).

B. The instant car is in 2015, and the first registration date is June 26, 2015, and the odometer up to the time of the instant accident is 5,124 km.

C. On August 22, 2015, the Plaintiff: (a) requested the repair of the instant vehicle to the Copied Global Co., Ltd. (hereinafter “Copied Global”); and (b) completed the repair on September 11, 2015. The repair content is an exchange, etc. of the bridged Copid (hereinafter “Copid”); and (c) the repair cost is KRW 9,379,342,342, adding value-added tax to KRW 3,758,58, 575, parts, 4, 768, 100, total amount of KRW 8,526,675.

D. On October 27, 2015, the Defendant paid KRW 9,300,00 as repair cost to the Kook Global.

E. The Plaintiff requested the Vehicle Technology Appraisal Center Co., Ltd. (hereinafter referred to as the “Road Technology Appraisal Center”) to appraise the instant car price decline damage due to the instant accident, and on May 13, 2016.

On the same day, the vehicle technology appraisal center received a written appraisal of the price decline in KRW 4,194,584 due to the instant accident from the vehicle technology appraisal center (hereinafter referred to as the “instant appraisal report”), and paid KRW 330,000 to the vehicle technology appraisal center for the cost of issuing the said appraisal report on the same day.

【Fact-finding without a dispute over the grounds for recognition, entry of Gap evidence 1 through 5, the purport of the whole pleadings

2. Whether the cost of issuing the appraisal of this case is legitimate for 330,000 won and damages for delay.

The Plaintiff asserted that the cost of issuing the instant appraisal statement was KRW 330,000,000 for damages arising from the instant accident and sought payment of the said money and damages for delay.

This article ex officio examines the legitimacy of the lawsuit.

Article 1 of the Costs of Civil Procedure Act provides that the costs of lawsuit pursuant to the Civil Procedure Act shall be the costs necessary for the litigation and shall be calculated pursuant to several provisions below. Although Articles 2 through 8 explicitly stipulate the items of expenses, the costs not provided in this Act shall be calculated according to the actual costs. Article 9 of the same Act provides that "The costs not provided in this Act shall be calculated." The so-called "general principle" was adopted concerning the scope of costs of lawsuit.

3.30,00 won for issuance of the written appraisal of this case is the costs of lawsuit directly paid by the Plaintiff to a third party for the performance of the litigation of this case. The amount paid as the above costs of lawsuit can be repaid through the procedure for confirmation of the costs of lawsuit, so there is no benefit to file a lawsuit separately (see Supreme Court Decision 9Da68577 delivered on May 12, 2000).

Therefore, the above part of the lawsuit in this case is unlawful as there is no benefit of lawsuit.

3. Determination as to the cause of action

(a) Occurrence of liability for damages;

According to the facts acknowledged above, B destroyed the car of this case due to driving negligence, and therefore, B is liable to compensate the plaintiff for damages due to illegal acts under Article 750 of the Civil Act against the plaintiff, and the defendant who is the insurer is liable to compensate the plaintiff under Article 724 (2) of the Commercial Act, except in extenuating circumstances.

In this regard, the defendant asserts that the defendant's automobile insurance clause provides that "if the cost of repairing a motor vehicle due to an accident (limited to a motor vehicle less than two years after its release) exceeds 20% of the value of the motor vehicle immediately preceding the accident, 15% of the cost of repairing a motor vehicle shall be paid, and if the cost of repairing a motor vehicle is more than one year but not more than two years after its release, 10% of the cost of repairing a motor vehicle shall be paid. The value of the motor vehicle in this case immediately preceding the accident is 50,000 won, and the cost of repairing a motor vehicle is 9.3 million won, and the cost of repairing a motor vehicle does not exceed 20% of the value of the motor vehicle immediately preceding the accident ( = 10 million won). Thus, the defendant has no liability to compensate the plaintiff for damages due to the price of the motor vehicle.

Under Article 724 (2) of the Commercial Act, the legal nature of the victim's direct right of action is that the insurer concurrently takes over the insured's obligation to compensate for damages against the insurer, and the victim is a claim for damages against the insurer and the insured is not a right equivalent to the alteration of the insured's insurance claim against the insurer (see Supreme Court Decision 98Da44956 delivered on February 12, 1999, so long as B is liable for damages based on tort against the plaintiff, the defendant concurrently takes over the above obligation against the plaintiff. The defendant bears the same obligation against the plaintiff, and how the insurance clause applicable to the defendant's liability under the insurance contract is irrelevant to the defendant's liability for compensation under Article 724 (2) of the Commercial Act against the plaintiff. Thus,

B. 1) The appraisal opinion is not based on the method of requesting the examination of an appraiser or the appraisal under the Civil Procedure Act, and even if the written appraisal opinion prepared by a person with professional knowledge and experience outside the litigation is not based on the method of requesting the examination of an appraiser under the Civil Procedure Act, if it is deemed reasonable by the court when the written appraisal is submitted in documentary evidence, it can be deemed reasonable by the court as evidence for fact finding (Supreme Court Decision 97Da57979 delivered on July 13,

However, such a appraisal (private appraisal) is not guaranteed the right to challenge and the right to interrogate of the parties. As such, it is necessary to determine the substantial evidence after examining whether the premise fact conforms to the facts recognized by the court, and whether the procedure leading to factual determination is appropriate. 2) The appraisal of this case calculated the price decline in the instant vehicle due to the instant accident as KRW 4,194,584 in accordance with the following: (a) The process of calculating the price decline in the instant vehicle due to the instant accident is as follows; (b) the front and aspect of the relevant passenger vehicle by the reduction coefficient; and (c) the damage and repair method of the back pages, which are divided from 0.12 to 0.3 in accordance with the reduction coefficient list, the reduction coefficient due to the exchange of Liby Panel was calculated as 0.12; and (d) the reduction coefficient due to the exchange of Liby Panel was calculated as 0.15.

B) Based on the standard price of the instant car at the standard price, KRW 50,690,000,000 for the new car price of the instant car at the fixed rate method, the average monthly rent of KRW 5,60,000 for the instant car was calculated at the standard price.

(c) Calculation formula of 3,789, 633 won: 8.526,675 won per total repair cost x 0.12. (The revised coefficient due to drid exchange) 4,737,041 won per repair panel: 8,526,675 won per total repair cost x 10.15 (the revised coefficient of 4.5 won per repair panel) x the value reduction of 15.12 x 35 x the average repair cost of 45 x the average repair cost of 4.4 x the average repair cost of 5 x the value reduction of 4.4 x the average repair cost of 5 x the value reduction of 15 x 4 x the average repair cost of 4 x the average repair cost of 5 x the value reduction of 4 x the average value reduction of 15 x 15 0 x the average value reduction of 4 x the average value reduction of 2.3 x 37 5 x the repair cost of this case.

The calculation of the price decline due to an accident is based on a simple calculation, and there is little room for the person who calculated the price in the calculation process or discretion to intervene. Unless there are special circumstances such as the discovery of error in the calculation process, it seems that objectivity and reliability are guaranteed by the appraisal conducted by the court.

Therefore, according to the appraisal statement of this case, the exchange value of the car of this case has been reduced to 4,194,584 won due to the accident of this case.

C. Whether the decline in the exchange value of the instant passenger vehicle constitutes ordinary damages

1) According to Article 393 of the Civil Act, damages due to nonperformance of obligation are ordinarily caused by the road, and damages due to special circumstances are liable only when the obligor knew or could have known of such circumstances. Since the above provisions apply mutatis mutandis to tort damages pursuant to Article 763 of the Civil Act, the damages due to tort are limited to ordinary damages, and the damages due to special circumstances are liable only when the tortfeasor knew or could have known of such circumstances.

The Supreme Court held that (i) repair costs in cases where repairs are possible; (ii) replacement value reduction in cases where part of repairs are remaining after repair; (iii) repair costs + exchange value decrease in cases where repair is impossible after repair; (iii) repair costs in cases where repair is deemed as ordinary damages (Supreme Court Decision 2001Da52889 Decided November 13, 2001); and (ii) damages due to the decline in exchange value in cases where repair is possible, other than repair costs, constitute special damages (Supreme Court Decision 2012Da115298 Decided December 11, 2014). However, in full view of the following, it is reasonable to see that damages due to a traffic accident, other than repair costs, are ordinary damages, unless there are special circumstances such as "general damages due to an ordinary damages due to a non-performance of the concept and special damages," barring special circumstances such as "general damages due to an ordinary damages due to a non-performance of the concept of damages," and (iii) ordinary damages due to a non-performance of the concept of damages.

For instance, in a case where a driver of a damaged motor vehicle knew or could have known of his/her own transport of the damaged motor vehicle in a manner that states such transport fact on the outside of the motor vehicle, he/she is included in the scope of compensation for damages. However, if the driver of the damaged motor vehicle knew or could have known of his/her own transport fact, his/her own value is included in the scope of compensation.

However, even if a vehicle is damaged due to a traffic accident, if it is possible to repair the vehicle, not only the cost of repair, but also the exchange value decline (referring to the vehicle's heavy taxation decline) is irrelevant to the individual and specific circumstances of the victim. This is merely an issue of empirical rule based on the transaction reality in the market, where the vehicle with the accident power is damaged, even if the repair is completed.

In addition, “special circumstances” refer to the circumstances that existed before a tort occurred. If a tortfeasor knew or could have known such circumstances, it is fair to compensate for damages arising from such special circumstances if he/she committed a tort. However, whether a vehicle damaged by a traffic accident falls due to a traffic accident, it is not a circumstance that existed before a tort occurs. Therefore, it is impossible to be subject to recognition of a tortfeasor prior to the occurrence of a tort.

Therefore, even after the repair of a motor vehicle damaged by a traffic accident has been completed, if the damage was caused by a decline in the heavy taxation, the damage is not a special damage for the place of ordinary damage when it is based on the conceptual classification of ordinary damage and special damage.

B) In the above case as seen earlier, even after repair remains, repair costs + exchange value reduction due to impossibility of repair would be the ordinary damages. In this case, “Exchange value reduction due to impossibility of repair” shall be calculated by the method of “Public Notice Tax before and after the vehicle’s accident - Public Notice Tax after the vehicle’s repair.”

11. In the judgment of the Supreme Court Decision 91Da28719, the difference of KRW 20,120,000,000, which was calculated by subtracting KRW 13,500,000 from the appraised value before the accident occurred due to the price decline of the franchise-free car (the actual sale amount) after repair (the same applies to the Supreme Court Decision 2001Da52889 Decided 11, 201).

In the case of the above 91Da28719, a passenger car can be repaired, but even if the automobile was repaired, when the heavy published price of KRW 20 million was reduced due to the accident power, the damages of KRW 1.2 million ( = 200,000 won - 20,000 won) are liable only when there is possibility of recognition as a tortfeasor because it constitutes a special damage. On the other hand, if there remain parts impossible to repair, the full amount of the exchange value reduced shall be deemed to be ordinary damages and shall be liable regardless of the possibility of recognition as a tortfeasor.

In the event that there remain remaining parts impossible to repair, it is reasonable to regard the exchange value reduced as special damage in the event that it is possible to repair the entire exchange value reduced as ordinary damage.

3) Therefore, the damages caused by the instant accident fall under ordinary damages and are included in the scope of compensation for damages, without examining the possibility of recognition as a tortfeasor B, since the value of the instant car was reduced to KRW 4,194,584.

D. Sub-committee

Therefore, the defendant is obligated to pay damages for delay calculated by the rate of 5% per annum under the Civil Act from June 9, 2016 to October 6, 2016, which is the date following the delivery date of a copy of the complaint of this case, as requested by the plaintiff, to the plaintiff as compensation for damages caused by the tort, and 15% 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.

4. Conclusion

Therefore, the part concerning the claim for the payment of delayed damage of KRW 330,00 for the issuance cost of the appraisal of this case and the part concerning the claim for the payment of delayed damage of this case is unlawful. The damages of KRW 4,194,584 due to decline in the exchange value of the passenger car of this case and the part concerning the claim for the payment of delayed damage shall be accepted within the scope of the above recognition, and the remainder