In a case where a traffic accident occurred due to a driver's negligence of the duty of care in a drunken state, the case holding that an insurance company that paid insurance money can seek reimbursement from the local government on behalf of the insured in subrogation of the local government within the scope of the insurance money paid to the insured, on the ground that the local government that is responsible for road management is negligent in failing to take measures to safely protect the vehicle and passengers when considering the characteristics of the place where the driver's negligence is large and the accident occurred.

In a case where a traffic accident occurred due to a driver's negligence of the duty of care in the former while under the influence of alcohol, on the grounds that the local government responsible for road management in consideration of the characteristics of the location where the driver's negligence has to comply with the provisions of Acts and subordinate statutes and should have installed the starting of the central separation zone in the front section of the central separation zone and have taken measures such as installing the shock absorbing facilities in the part, which is the starting part of the central separation zone, but the failure to take such measures is recognized, an insurance company that has paid insurance money can seek reimbursement against the local government by subrogation against the insured within the scope of the insurance money paid to the insured.

Article 760 of the Civil Act, Article 729 of the Commercial Act

Dongbu Fire and Marine Insurance Co., Ltd. (Law Firm Jeongse, Attorneys Han Sang-han et al., Counsel for the plaintiff-appellant)

Mineyang-si (Attorney Park Chang-hun et al., Counsel for the plaintiff-appellant)

Seoul Central District Court Decision 2007Gadan218023 Decided October 2, 2008

January 22, 2010

1. The part of the judgment of the court of first instance against the plaintiff, which orders payment below, shall be revoked.

The defendant shall pay to the plaintiff the amount of KRW 48,045,623 and the amount calculated by applying each rate of 5% per annum from February 1, 2007 to February 19, 2010, and 20% per annum from the next day to the day of full payment.

2. The plaintiff's remaining appeal is dismissed.

3. The total costs of the lawsuit shall be divided into four parts, and three of them shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

4. The portion paid with the amount under paragraph (1) may be provisionally executed.

The judgment of the first instance is revoked. The defendant shall pay to the plaintiff 144,136,860 won with 5% per annum from February 1, 2007 to the date of the pronouncement of the judgment of this case, and 20% per annum from the next day to the date of full payment.

1. Basic facts

The following facts do not conflict between the parties, or may be acknowledged by taking into account the whole purport of the pleadings in the statements or images described in Gap evidence 1-1-5, Gap evidence 2-4 through 13, 18, 21, 22, 24, Gap evidence 4-1, Gap evidence 7-1 through 12, Eul evidence 1, 2, 5, 6, Eul evidence 7-1, and Eul evidence 7-2.

(1) On November 25, 2005, the Plaintiff entered into a comprehensive automobile insurance contract (hereinafter “instant insurance contract”) with Nonparty 1 to compensate the insured for the damages to be borne by the insured due to an accident during the operation of the instant vehicle from November 25, 2005 to December 9, 2005, and the Defendant is a local government managing the road where the instant accident occurred.

(2) On December 1, 2005, Nonparty 1 driven the instant vehicle under the influence of alcohol with 0.183% of alcohol content around 22:40, and caused the accident (hereinafter “instant accident”) involving Nonparty 2, who was on board the instant vehicle due to his negligence in Jeonyang-si, after driving the instant vehicle under the influence of alcohol at the 0.183% of alcohol content, and driving the instant vehicle on the 2-lane-dong village located at the engyang-si, Taeyang-si and passing through the intersection of village for each Taeyang-si, Goyang-si, one-lane-si (hereinafter “instant accident”).

(3) At the time of the instant accident, the location of the instant accident was indicated by a 100-meter radius from the front line at the center line at the center of the road at the time of the instant accident, where the safety zone was marked from the end of the 100-meter radius from the front line at the center of the road at the time of the instant accident. The two lines were installed depending on the center line from the starting point at the center of the central separation zone, and the two lines were installed at the center of the center separation zone, and the high-brus was attached to the center of the central separation zone. However, the part at the beginning part of the central separation zone was not installed with the shockor, and there was no exit exit, etc. to notify the beginning of the central separation zone at the center of the central separation zone. Meanwhile, after the instant accident, the shock absorption facility was installed in the beginning part of the central separation zone, and the front line was installed in the central separation zone.

(4) The Plaintiff, as the insurer of the instant vehicle from December 6, 2005 to January 31, 2007, paid KRW 114,791,360 to Nonparty 3 as damages or medical expenses, KRW 8,824,870 to Nonparty 4, KRW 18,840,870 to Nonparty 5, KRW 120,000 to Nonparty 1, and KRW 218,00,456,230 to Nonparty 2’s bereaved families.

2. Occurrence of the right of indemnity or subrogation; and

(1) Relevant statutes and guidelines for Ministry of Construction and Transportation

Article 39(1) of the Road Act (amended by Act No. 7678 of Aug. 4, 2005 and enforced on Aug. 5, 2006) which was in force at the time of the instant accident provides that “the structure and facilities of the road, and the maintenance, safety inspection, and repair of the road shall conform to the standards as prescribed by the Ordinance of the Ministry of Construction and Transportation.” Accordingly, Article 37(1) of the Rules on the Structure and Facilities Standards of Roads (amended by Ordinance of the Ministry of Construction and Transportation No. 329 of May 30, 2006, hereinafter referred to as the “Rules”) of the Ministry of Construction and Transportation (amended by Ordinance of the Ministry of Construction and Transportation No. 329 of May 30, 2006, hereinafter referred to as the “Rules”) provides that “the matters concerning the structure and facilities of the road shall be determined by the Ordinance of the Ministry of Construction and Transportation in addition to the matters prescribed by the Rules.”

Accordingly, among the management guidelines for the installation and management of road safety facilities prepared by the Ministry of Construction and Transportation (A, No. 3, 8, No. 9, 2, hereinafter “instant guidelines”), the part of the starting-way guiding facility provides that “a structure such as the Central Separationing Protective fence, etc. shall be installed as a starting-way guiding facility, such as a starting-way guide, in order to minimize the opportunity of collision between a vehicle and a structure, because a serious injury to passengers is caused by a direct collision between the vehicle and the vehicle,” and the part of the vehicle protection safety facility provides that “(central separation fence) shall be installed actively as a shock absorbing facility for the treatment of the vehicle is highly likely to cause severe injury to passengers when the collision between the vehicle and the vehicle.”

(2) Whether the Defendant was erroneous in the road management of the instant case

The instant accident appears to have occurred as seen earlier by Nonparty 1, a driver of the instant vehicle, without looking at the front side of the road in the night, while driving the instant vehicle at night without looking at the front side of the road, and without discovering the center separation zone. In light of the circumstances surrounding the accident, it is clear that Nonparty 1’s negligence directly caused the instant accident.

However, in addition to the negligence of the non-party 1, it is a problem whether the defendant's mistake in the management of the road involved in the accident of this case has caused the accident or the expansion of damage.

In full view of the aforementioned facts and evidence No. 2-4 and No. 10, and the purport of the entire pleadings, the accident site of this case where the speed of restriction is 80 km per hour by considering the statements or images as set forth in the evidence No. 2-4 and No. 10, the accident site of this case where the speed of restriction is 80 km per hour, is 4 lines from the parallel line 4 lines, and there is no element of hindering drivers, such as obstacles or a sudden kib, etc., and there is a stop range of 165 meters (Article 23 of the Rules provides that “in the case where the speed limit is 80 km, a stop of 140 meters” shall be secured). The fact that safety zone was installed on the road surface of this case from the front line of 100 meters before the beginning of the central separation zone of this case to attract drivers at night, it is recognized that there was a high-profluorial bag installed on the center

However, the accident location of this case does not have lighting devices at all, and is a narrow bend, and the central separation cost is installed from the point of the road intermediate to the point of the road. Thus, the driver is highly likely to conflict with the central separation zone where the front-round operation was not secured at night, and there is a high possibility that serious injury may occur to the driver or passengers. At the time of collision, the safety zone or high-speed scams are installed from the starting point of the central separation zone, so it is insufficient to prevent accidents, and the safety zone or high-ranking scamsckes are also installed from the middle point of the road, not the starting point of the road, and the central separation zone installed from the middle point of the road, not the starting point of the road, and it is insufficient to avoid this accident. In compliance with the provisions of the above statutes, the defendant installed the central separation zone of the road, which notified the beginning of the central separation zone, and even if there is no other evidence to acknowledge that the vehicle and passengers had been installed in the central separation zone of the accident.

Therefore, the Defendant erred in the road management of this case.

(3) A causal relationship

In light of the background of the instant accident, the structure of the site of the accident, and the degree of the victims’ death or injury, as seen earlier, the driver of the vehicle involved in the accident did not install a starting gate, etc. as stipulated in the above Acts and subordinate statutes concerning the central separation zone facilities of the road of this case under the Defendant’s management so that the driver of the vehicle involved in the accident failed to discover the central separation zone of the road, and shock absorption facilities, etc., which could mitigate the shock, are deemed to have caused the death or injury of passengers due to the accident, or to have increased the degree of damage. As such, there is a causal link between the Defendant’s mistake in road management and the occurrence and expansion of the damage

(4) Grounds for indemnity or subrogation

The accident and damages of this case are that the negligence of the non-party 1's driver who failed to fulfill the duty of care in driving (the entries of the evidence No. 2-19,20 concerning the fact that the non-party 1 was driving at the time of the accident in this case are insufficient to recognize it, and there is no other evidence to recognize it) and the defendant's negligence that failed to perform the duty of management in the road. The joint tortfeasor has a joint and several liability in relation to the creditor, but there is a certain portion of the joint and several liability in relation to the inside relation of the joint and several tortfeasor, but this portion of the joint and several liability is determined according to the degree of the negligence of the joint and several tortfeasor, and if the one among the joint and several tortfeasor obtains the joint exemption by paying more than the share of the joint and several liability, the other joint and several tortfeasor may exercise his right to indemnity in proportion to the portion of the liability (see Supreme Court Decision 88Da27232, Sept. 26,

As seen earlier, the Plaintiff, who is the insurer of the instant accident vehicle, is the insurer of Nonparty 1, one of the joint tortfeasor, and the Defendant also discharged the Defendant from liability by paying damages to the victims. As to the remainder other than the portion paid to Nonparty 1, the Defendant is obligated to pay the Plaintiff the share of liability corresponding to its ratio of liability according to the subrogation provision under Article 682 of the Commercial Act.

On the other hand, in relation to the part paid to Nonparty 1, the Defendant asserts to the effect that “The insurance money paid by Nonparty 1 to the part directly injured by the Plaintiff out of the insurance money paid in relation to the instant accident is paid according to the instant insurance contract, but it constitutes a “self-physical accident security”, which is a kind of personal insurance under the Commercial Act, and thus, the Plaintiff’s claim against the Defendant in relation to the said part is not allowed in accordance with the provisions of Article 729 of the Commercial Act and the terms and conditions

However, according to the evidence No. 4-1, No. 4-2, No. 3, No. 5, and No. 6, the insurance money that the Plaintiff paid to Nonparty 1 was paid according to the "automobile injury insurance" rather than the "automobile accident" insurance contract under the insurance contract of this case, and according to the terms and conditions of the insurance contract of this case, it can be recognized that "the insurer obtains the right of the insured to a third party within the limit of the insurance money if the insurer has paid the automobile accident insurance money to the insured." The automobile injury insurance is liable for the insurer to pay the death insurance money or injury insurance money or late disability insurance money as stipulated in the insurance contract when the insured was injured due to the accident of the insured automobile occurred while the insured owns, uses, or manages the insured automobile. However, it is a kind of personal insurance contract, but it is an insurance contract that pays compensation as stipulated in the insurance contract of this case, and thus, it is within the scope of the insurer's right to exercise its right by subrogation of another party or beneficiary (see Supreme Court Decision 2003Da296379, Jul. 9, 20004).

Therefore, according to the proviso of Article 729 of the Commercial Act and the insurance contract of this case, the plaintiff can exercise in subrogation the right of the non-party 1, the insured, to the defendant in relation to the injury he suffered directly by the defendant within the scope of the insurance money paid by the plaintiff. Thus, the defendant is obligated to pay the part paid to the non-party 1 the share of the burden corresponding to

3. Scope of the right of indemnity or subrogation.

As seen earlier, in light of the developments leading up to the occurrence of the instant accident, the details and degree of the driver’s breach of duty of care, the details of defects in the road management, and the degree of damages caused by the accident, etc., it is reasonable to limit the Defendant’s liability ratio to 10%. Meanwhile, KRW 480,456,230, paid by the Plaintiff to the victims, appears to be appropriate within the scope of actual damages

Therefore, the defendant is obligated to pay to the plaintiff 48,045,623 won (480,456,230 won x 10%) and damages for delay calculated at each rate of 5% per annum under the Civil Act from February 1, 2007, which is the day following the last payment of the damages amount, to February 19, 2010, which is the day when the judgment of the court of first instance is rendered by the defendant to February 19, 2010, and 20% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the next day to the day of full payment.

4. Conclusion

Therefore, the plaintiff's claim of this case is justified within the above scope of recognition, and the remaining claims are dismissed. Since the judgment of the court of first instance is so unfair within the scope of conclusion, the plaintiff's appeal is partially accepted, and the part of the judgment of the court of first instance against the plaintiff corresponding to the amount ordered to be paid in the trial of the court of first instance is revoked, and the defendant is ordered to pay the above amount to the plaintiff, and the remaining appeal of the plaintiff is dismissed unfairly and is so decided as per Disposition.

Judges Jo Hee-de (Presiding Judge)