2020Na53231 Rent

A

B

Busan District Court Decision 2019 Ghana598014 Decided June 9, 2020

January 20, 2021

February 18, 2021

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 1,015,750 won with 5% interest per annum until February 18, 2021, and 12% interest per annum from the next day to the day of full payment.

2. The plaintiff's remaining appeal is dismissed.

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

4. The part concerning the payment of money under paragraph (1) may be provisionally executed.

1. Purport of claim

The defendant shall pay to the plaintiff 1,487,00 won with 12% interest per annum from the day following the delivery of a copy of the complaint of this case to the day of complete payment.

2. Purport of appeal

Of the judgment of the first instance, the part against the plaintiff shall be revoked. The defendant shall pay to the plaintiff 1.0750 won and 12% interest per annum from January 3, 2020 to the date of full payment.

1. Basic facts

A. C is the owner of D Uidi A6 vehicle (hereinafter referred to as “victimd vehicle”), and the Defendant is an insurance company that entered into an automobile insurance contract with respect to D Uididi vehicle.

B. Due to an accident caused by a harming vehicle (hereinafter referred to as “instant accident”), C borrowed from the Plaintiff during the repair period of the damaged vehicle during the period from August 3 to August 8, 2019 (five days) for the damaged vehicle.

C. The Plaintiff acquired the Plaintiff’s damage claim equivalent to the Plaintiff’s rent from C to the Defendant.

[Ground of recognition] A without dispute, entry of evidence No. 1, purport of the whole pleadings

2. Judgment on the main defense of this case

The defendant asserts that the plaintiff's acquisition of the above damage claim from C is null and void because it constitutes a litigation trust.

However, there is no evidence to acknowledge the above assertion by the defendant (or, the main purpose of the acquisition of the above damage claim seems to have been to receive the rent from the plaintiff C), and the above argument by the defendant is without merit.

3. Judgment on the merits

A. Summary of the parties' assertion

1) Plaintiff

C 1,487,00 (=F’s rent 425,000 x 5)

The defendant is obligated to pay the above amount of money and damages for delay to the plaintiff who acquired the damage claim because he suffered damages equivalent to 70% of the usual discount rate.

2) Defendant

As a part of the "plan for rationalizing car insurance related to height vehicles", the defendant changed the rental fee under the insurance policy to the "ordinary fee required for borrowing the lowest fare among the rental vehicles of the same class". In this context, the "Dong pay" means a vehicle with engine displacement and smoke similar thereto. As such, the rental fee due to the accident in this case should be calculated as the 471,250 won (=145,000 won x 5 days x 65%) which is the rental fee of the damaged vehicle and the same class.

B. Relevant legal principles

Property damage caused by an illegal act refers to the difference between the property disadvantage caused by the illegal harmful act, that is, the property condition that would have existed without the illegal act and the current property status that became the illegal act (see, e.g., Supreme Court en banc Decision 91Da33070, Jun. 23, 1992).

In a case where a victim claims, from a perpetrator or an insurer, expenses incurred in borrowing and lending another motor vehicle of the same kind and class for a certain period of time due to damage caused by an accident, as damages or insurance proceeds, the expenses incurred in borrowing and lending the relevant motor vehicle shall be necessary, as well as the amount of the lending and borrowing expenses thereof may be appropriate (see, e.g., Supreme Court Decision 2012Da67399, Feb. 15, 2013).

Pursuant to 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 victim, and the victim is a right to claim damages against the insurer and the insured’s right to claim damages against the insurer. Such direct right of action is based on the premise of an insurance contract, and thus, the insurer’s liability for damages borne by the insurer upon the victim ought to be recognized within the scope of the insurer’s liability limit under an insurance contract. It does not mean that the court is bound by the criteria for the payment of the automobile comprehensive insurance clause in calculating the amount of damages that the insurer should compensate for to the victim (see, e.g., Supreme Court Decision 2018Da307

C. Determination

1) The damages equivalent to the rental fee due to the failure to operate the damaged vehicle due to the instant accident are the expenses required for the full recovery of the property condition that would have existed without the instant accident, i.e., the expenses incurred in leasing and lending the same vehicle entirely identical to the damaged vehicle. However, given that it is practically impossible or very difficult to rent and lease the same vehicle completely identical to the damaged vehicle, ratification of the same vehicle rental fee based on the rent of the same kind and the same vehicle, which is the vehicle most similar to the damaged vehicle, can be deemed as a method for calculating the total compensation for damages in line with the principle of complete compensation. On the other hand, in assessing the value of the vehicle (fixed rental fee), the value of the vehicle, other than the engine displacement and the exhaust system, shall be considered as an important factor such as engine displacement, driving performance, design, brand value, etc., and thus, ratification of the same vehicle rental fee based on the rent of the same vehicle cannot be deemed as a method for calculating the total compensation for damages.

In addition, the standard of rental fee for the defendant's insurance terms and conditions does not restrict the victim or the court of the accident. Since the repair cost of the imported vehicle is higher than that of the domestic vehicle of the same grade, there are negative aspects such as the increase in the share of damages and the increase in the insurance premium as a whole in the event of the accident, and it is also necessary to improve this. However, without any legal basis, calculating the amount of the rental fee equivalent to the rental fee based on the rental fee for the vehicle of the same class other than the same kind for the foregoing social policy reasons is in violation of the principle

2) Comprehensively taking account of the respective descriptions in the evidence Nos. 2, 5, and 6 and the purport of the entire pleadings, the fact that the damaged vehicle and the Plaintiff’s vehicle are of the same kind and kind, and the normal discount rate of 70% in the case of F members, a large-scale domestic rental car company. There is no evidence to acknowledge that C had difficulties in joining F as a member, and the Defendant asserts that 5% may be additionally discounted at the time of reservation on the Internet. However, in addition to the absence of evidence to acknowledge the above assertion, and the fact that the conditional discount on the Internet reservation is difficult to be considered as an ordinary discount, it is reasonable to view that the usual discount rate applied to the Plaintiff vehicle is 70%.

Therefore, the amount of damages equivalent to the loan fee due to the instant accident is KRW 1,487,500 (=rent 425,000 x 5 days x 70%).

D. Sub-committee

The defendant is obligated to pay the plaintiff 1,487,00 won and delay damages for the plaintiff within the scope of the above 1,487,50 won. Among them, 471,250 won and delay damages for them were cited in the first instance trial, the defendant is obligated to additionally pay the plaintiff 1,015,750 won (=1,487,00- - 471,250 won) and damages for delay at each rate of 12% per annum under the Civil Act from January 3, 2020 to February 18, 2021, which is the day after the delivery of the copy of the complaint of this case sought by the plaintiff, clearly is the day after the delivery of the copy of the complaint of this case to the plaintiff.

4. Conclusion

Therefore, the plaintiff's claim shall be accepted within the extent of the above recognition, and the remaining claims shall be dismissed as it is without merit. Since the part against the plaintiff corresponding to the above additional payment order among the judgment of the court of first instance is unfair with different conclusion, the plaintiff's appeal is partially accepted, and the above amount shall be revoked and the defendant shall be ordered to pay the above amount, and the remaining appeal by the plaintiff shall be dismissed as it is not acceptable.

Judges of the presiding judge;

Judges Shin Shin-man

Judges Yang Chang-soo

1) Although the purport of the appeal is stated as " January 2, 2020" in the purport of the petition of appeal, it shall be deemed as "after the delivery of a copy of the complaint of this case" as stated in the purport of the petition of appeal ( January 3, 2020).