In a case where Gap insurance company entered into an automobile insurance contract with "special agreement on coverage by non-insurance motor vehicles" added to "the special agreement on coverage by non-insurance vehicles," which shall be compensated as prescribed by the terms and conditions for the damage caused by the insured's death or injury caused by the accident caused by Eul, Byung, and the above insurance contract provides that "the amount payable by the government-guaranteed business" as one of the deductible amounts in the course of calculating the insurance proceeds, the case holding that the above provision does not purport that the insurer shall deduct the amount payable from the insurance proceeds to be paid if there is any amount that can be paid by the government-guaranteed business, the liability deduction, and the government-guaranteed business from the insurance proceeds to be paid, and that only the amount exceeding the amount calculated by applying the above provisions shall not be paid as the insurance proceeds.

Article 726-2 of the Commercial Act, Article 105 of the Civil Act

Mez Fire Insurance Co., Ltd. (Law Firm Vindication, Attorney Jeon Jae-han, Counsel for the plaintiff-appellant)

Defendant (Attorney Kim So-young et al., Counsel for the defendant-appellant)

Chuncheon District Court Decision 2017Na30146 decided March 13, 2018

The part of the judgment of the court below against the plaintiff is reversed, and that part of the case is remanded to the Gangnam District Court Panel Division of the Chuncheon District Court. The defendant's supplementary appeal is dismissed.

1. The plaintiff's grounds of appeal are examined.

A. Review of the reasoning of the lower judgment and the record reveals the following facts.

(1) The Plaintiff entered into an automobile insurance contract (hereinafter “instant insurance contract”) with the term “the special agreement for coverage by non-life-free cars” (hereinafter “instant insurance contract”) that provides for the loss incurred when the insured (including his parents) died or died of an accident caused by an accident resulting from an non-life-free automobile, which is Nonparty 1 and Nonparty 2’s children.

(2) While Nonparty 1 driving a motor vehicle (vehicle number 2 omitted) which Nonparty 2 was accompanied by Nonparty 2, Nonparty 1 shocked the rear part of the Defendant’s Tracker (hereinafter “Defendant’s vehicle”) on which the Defendant’s Tracker (hereinafter “Defendant’s vehicle”). Nonparty 1 and Nonparty 2 suffered injury due to the instant traffic accident.

(3) The Defendant’s vehicle constitutes an non-insured automobile as stipulated in the instant insurance contract.

(4) The K non-life insurance company, which concluded three insurance contracts designated by Non-Party 1 and Non-Party 2 as the insured of the non-life insurance special agreement, paid insurance proceeds for the instant traffic accident to Non-Party 1 and Non-Party 2, and claimed for share of KRW 24,252,320 equivalent to 1/4 of the insurance proceeds paid to the Plaintiff, who is the duplicate insurer of the special agreement for accident security by non-life insurance, and claimed for share of KRW 24,252,320 of the insurance proceeds paid. The Plaintiff paid the share of KRW 24,252,320 as the share, and then filed the instant lawsuit seeking

(5) The instant insurance contract provides that “The insurer shall pay the amount of the insurance money after deducting the amount of the deduction from the aggregate of the amounts calculated according to the standard for payment of the insurance money and the “expenses” with respect to the contents of the indemnity for injury by an non-insurance motor vehicle.” One of the amount of the deduction provides that “The amount of the insurance money may be paid pursuant to personal compensation I (including liability mutual aid and government guarantee business).”

B. The court below acknowledged the defendant's liability for damages caused by the instant traffic accident, limited to 20%, and determined as follows in calculating the scope of the claim for indemnity, on the ground that the plaintiff paid double insurance contributions with respect to the insurance money paid in accordance with the special agreement on coverage by non-life-free vehicles, so that it can exercise the right to claim damages against the defendant of non-party 1 and non-party 2 within the scope of payment of contributions in accordance with the proviso of Article 729 of the Commercial Act

(1) The Plaintiff may, within the limit of the right to claim damages against Nonparty 1 and Nonparty 2 by subrogation of the insurer, claim the amount of money according to the apportionment ratio among the insurance proceeds reasonably calculated according to the standard for the payment of insurance proceeds under a special agreement on indemnity by an insured motor vehicle.

(2) The amount calculated according to the standard for the payment of insurance proceeds under a special contract for coverage by an insured motor vehicle is KRW 12,382,176 and KRW 29,434,460.

(3) The terms and conditions of the Plaintiff stipulate that the insurance money, which an insurance company is liable for payment due to an accident caused by an non-insurance motor vehicle, shall be the amount obtained by deducting the amount that can be paid by personal compensation I from the amount calculated according to the standard for the payment of insurance money. The maximum amount of the insurance money for each injury under the Enforcement Decree of the Guarantee of Automobile Accident Compensation Act is Nonparty 12,00,000, and Nonparty 215,000,000.

(4) The final insurance money calculated according to the terms and conditions is KRW 382,176 (=12,382,176) (i.e., the amount calculated according to the insurance payment standard - KRW 12,00,000). Nonparty 2 is not a party (i.e., the amount calculated according to the insurance payment standard - KRW 9,434,460, which is less than KRW 15,000,000, which is the limit of liability insurance amount to be deducted).

C. However, it is difficult to accept the lower court’s aforementioned determination on the amount of deduction in the course of calculating insurance proceeds under a special agreement for indemnity by an insured motor vehicle for the following reasons.

The terms and conditions of the instant insurance contract stipulate that “The insurer will pay the amount of insurance after deducting the amount of deduction from the sum of “amount calculated according to the standard for the payment of insurance proceeds” and “expenses” of the terms and conditions, and stipulate that “the amount which may be paid by the Government Security Business” as one of the deductions. The purport of the instant insurance contract is to pay only the remainder after deducting the amount of deduction from the insurance amount to be paid by the insured under the premise that personal compensation I, liability deductions, and government security business is applicable to the insured under the premise that personal compensation I, liability deductions, and government security business is applicable. This does not mean that only the portion exceeding the amount calculated by applying personal compensation I, liability deductions, and government security business should be paid as the insurance amount under the premise that there is any amount payable by the insured under the premise that the insured is personal compensation I, liability deductions, and government security business. On the contrary, it does not mean that only the portion exceeding the amount payable by the insurer should be paid as the insurance amount.

In light of the above legal principles, in order to deduct the sum of the amounts and expenses calculated according to the standard for the payment of insurance money from the insurance money when calculating the insurance money according to the non-life-backed special agreement resulting from the accident of this case, there must be the amount that can be paid by the personal compensation I in accordance with the standard for the payment of insurance money.

D. Nevertheless, the lower court should have deliberated on whether the instant traffic accident was subject to personal compensation I and could have been paid by personal compensation I, and determined whether the pertinent amount would be deducted from personal compensation I, but immediately thereafter, deducted the liability insurance amount pursuant to the Personal Compensation I.

In so determining, the lower court erred by misapprehending the legal doctrine on the application of deduction amount in a special agreement on indemnity with an insured motor vehicle, thereby failing to exhaust all necessary deliberations. The ground of appeal assigning this error is with merit.

2. We examine the Defendant’s grounds of incidental appeal.

A. As to negligence

In light of the circumstances stated in its holding, the lower court determined that the Defendant, as the driver of the Defendant’s vehicle, was liable for compensating for damages caused by the instant traffic accident, on the ground that the Defendant’s negligence, which infringed upon the central line and left-hand turn, caused the instant traffic accident. In light of the records, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence in violation of logical

Meanwhile, the fact-finding or determination of the ratio of comparative negligence in a claim for damages arising from tort falls under the exclusive authority of a fact-finding court unless it is deemed that it is considerably unreasonable in light of the principle of equity (see Supreme Court Decision 2002Da43165, Nov. 26, 2002, etc.). Examining these legal principles, the lower court did not err by misapprehending the legal doctrine on comparative negligence, which determined that it is reasonable to regard Nonparty 1’s negligence as 80% and limit the Defendant’s liability to 20%, contrary to what is alleged in the grounds of

B. As to the computation of damages

This part of the grounds of appeal is without merit since it constitutes a dispute over the selection of evidence and the legitimacy of fact-finding which belong to the lower court’s exclusive jurisdiction. In addition, in light of the relevant legal principles and records, the lower court did not err by misapprehending the legal doctrine on the king evidence and limitation of liability, thereby failing to exhaust all necessary deliberations, or by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, as alleged in the grounds of appeal.

3. Conclusion

The part of the lower judgment against the Plaintiff is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The Defendant’s incidental appeal is dismissed as it is without merit. It is so decided as per Disposition by the assent of all participating Justices

Justices Ahn Jae-chul (Presiding Justice)