209Na7332 Confirmation of Non-existence of Obligation (i.e., self)

△△△, Inc.

Seoul Jongno-gu

Lee ○, ○, and west ○

[Defendant-Appellee] Defendant 1 and 2 others

○○ (55-years, Males)

Ansan-si members of Ansan-si

Attorney Jeong-young et al., Counsel for defendant

Suwon District Court Decision 2008Gadan36725 Decided November 26, 2008

September 17, 2009

October 1, 2009

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

On April 17, 2008: at around 10, the plaintiff confirmed that the plaintiff had no obligation to pay insurance money exceeding the amount of personal injury I (liability insurance) to the defendant in relation to the shock traffic accident involving the victim who was under a road by the 000 bus 70,000 in front of the Mari-dong community service center in Singu, Mari-si.

2. Purport of appeal

The order is as set forth in the text.

1. Determination as to the legitimacy of the defendant's appeal for the completion of the appeal

According to the records of this case, the court of first instance rendered a judgment in favor of the plaintiff on November 26, 2008 after delivering a copy of the complaint of this case against the defendant and the notice of the date for pleading by public notice, and then proceeding with the pleading on November 26, 2008, and delivered the original copy of the judgment to the defendant by public notice, and the defendant also filed an appeal for subsequent completion with the court of first instance on March 3, 2009 after being aware of it around February 19, 2009. Accordingly, it is recognized that the defendant was unable to comply with the peremptory appeal period by failing to know the progress and result of the lawsuit of this case due to any cause not attributable to himself. Thus, the defendant's appeal for subsequent completion of appeal of this case satisfies the requirements for subsequent completion of litigation and is lawful.

2. Basic facts

A. On March 31, 2008, the Plaintiff, a company running non-life insurance business, such as automobile insurance, entered into an automobile insurance contract with the Defendant for business as described in the separate sheet for 000 buses (hereinafter referred to as “the instant bus”) with the Defendant for the sports 7010000, which was owned by the Defendant (Provided, That the name of the policyholder is the name of the Defendant A; hereinafter referred to as “the instant insurance contract”).

B. From around 2006 to B, the Defendant entered into a land entry contract with the content that the Defendant would pay 2.6 million won per month for the land entry fees from B, instead of having the private teaching institutes located in the 000 - 000 - 4 000 - the 000 - the 000 - the 4 00 - the 00 - the 2600 - the 00 - the 00 - the 00 - the 00 - the 00 - the 2600 - the 00 - the 2600 - the 2600 - the 00 - the 0.

C. On April 17, 2008, the Defendant driven the instant bus around 01:05, while driving the instant bus in the direction of Ansan-dong Public Security Center in the direction of Ansan-dong in the direction of Ansan-dong Park at the time of Silung-dong, the Defendant was shocked without viewing C who was under the influence of alcohol and was under the influence of alcohol on the road (hereinafter “instant accident”).

D. C asserts that the instant accident sustained injury, such as external wounds No. 1 - 2, due to such injury, and thereby lost the ability to work permanently, and Seoul against the Plaintiff, Defendant, and Party B

The Central District Court 2008 has claimed damages as 0000 group.

E. The general terms and conditions of the business car insurance stipulate that "if the insured automobile is a passenger car or a passenger car (battle bus) without compensation by the Plaintiff in Class II, damage incurred when it repeatedly uses or leases the insured automobile for the purpose of charge or compensation (referred to as "the instant exemption terms and conditions"), and the Plaintiff prepares a special clause of commercial transport that allows the Plaintiff to receive compensation for damage caused by an accident during commercial transport.

F. Before entering into the instant insurance contract with the Plaintiff, the Defendant entered into an automobile insurance contract on the instant bus with D Co., Ltd., and subscribed to the said D Co., Ltd. special terms and conditions for commercial transport at least two to three months prior to the expiration of the contract. However, the instant insurance contract did not enter into a special terms and conditions for commercial transport.

[Reasons for Recognition] Facts without a partial dispute, Gap evidence 1 through 5, Eul evidence 1-1, 2-2, Eul evidence 2-5, Eul evidence 7-1 through 3, and the purport of the whole pleadings

3. The parties' assertion and judgment

A. Party’s assertion

1) The plaintiff's assertion

The Defendant joined the instant bus into the instant private teaching institute and received KRW 2.6 million monthly from B, and used it for the transportation of private teaching institute students at a cost. The Defendant did not subscribe to the instant special transport terms and conditions at the time of the instant insurance contract and used the instant bus for commercial transport, thereby causing the instant accident. Therefore, the Plaintiff is not liable for compensation for the portion exceeding the liability insurance amount (personal compensation I) in relation to the instant accident in accordance with the instant exemption terms and conditions.

2) Defendant’s assertion

The private teaching institutes of this case do not spend the expenses for the use of the bus of this case, and the bus of this case is operated only for a certain time and area as a free shuttle bus for only the private teaching institutes of this case. Therefore, the Defendant’s operation of the bus of this case is not harmful to commercial transport. Therefore, there is no room for applying the exemption clause of this case to the accident of this case.

B. Determination

The exemption clause of this case provides for the insurer's exemption from liability with respect to so-called accidents during commercial transport where the insured motor vehicle is used or rented repeatedly for the purpose of fees or consideration, as long as the risk of the insurance accident is much more than that of commercial transport, the main purpose of this clause is to refrain from taking over the risks arising therefrom unless the insurance premium is paid in addition to the risk of the insurance accident by a separate risk security special agreement. Thus, for the operation of the insured motor vehicle to constitute commercial transport as referred to in the above provision, it is insufficient to say that the insured motor vehicle was paid with repeated money in relation to its operation, and the risk is increased to more than that anticipated by the insurer (see Supreme Court Decision 19Da10349 delivered on September 3, 199).

In full view of the purport of the statements and arguments stated in the evidence Nos. 4 and 5, the defendant operated the bus of this case for the purpose of attending school of the private teaching institute prior to the insurance contract of this case. The defendant clearly notified this fact to the insurance solicitor at the time of entering into the insurance contract of this case, and the bus of this case was operated only for a certain period of time by only the students belonging to the private teaching institute of this case. Accordingly, even if the defendant received a certain amount of money from B operating the private teaching institute of this case as a rent, it cannot be said that the form of the bus of this case was changed differently from the original one, or that the risk of its operation was increased more than the initial one. Thus, it is difficult to view that the defendant's act of operating the bus of this case for school life of this case is a commercial transport as stated in the exemption clause of this case. Accordingly, the plaintiff's assertion that the defendant caused the accident of this case while using the bus of this case for consideration is without merit.

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed due to the lack of reason, and the judgment of the court of first instance is unfair with different conclusions, so the defendant's appeal is accepted, and it is revoked, and the plaintiff's claim is dismissed.

Judges dedicated to judges

Judges Esck-spons

Judges Kim Jong-hee

nan

1. Insurance types: Insurance of automobile for business; and

2. Contract number: 000000 - 0000

3. Insurance period: From March 31, 2008 to March 31, 2009;

4. Insured: E.

5. Quantity of tea: Sports 70,000

6. Category of Security: the son I, the son II, the son II, the son, the hand, the non-insurance, the vehicle end.