(영문) 대구지방법원 2016.6.9.선고 2015가단129325 판결

The defendant shall pay to the plaintiff 150 million won with 5% interest per annum from December 22, 2015 to the service date of a copy of the complaint of this case, and 15% interest per annum from the next day to the day of complete payment.

Reasons

1. Basic facts

A. The Plaintiff, an insurer running non-life insurance business, concluded an automobile insurance contract with the automobile B driven by A (hereinafter referred to as the “Plaintiff”), and the Defendant also concluded the automobile insurance contract with the D vehicle driven by C as an insurer (hereinafter referred to as the “Defendant vehicle”). Around July 14, 2015, 03:20, while driving the Defendant vehicle and driving it at the same time as the front part of the vehicle in front of the Defendant vehicle and driving it on the front part of the vehicle in front of that vehicle in front of that vehicle in front of that vehicle, the vehicle in front of that vehicle in front of that vehicle in front of that vehicle in front of that vehicle in front of that vehicle in front of that vehicle in front of that vehicle in front of that vehicle in front of that vehicle in front of that vehicle in front of that vehicle in front of that vehicle in front of that vehicle in front of that vehicle in front of that vehicle in front of that vehicle in front of that vehicle in front of that vehicle in front of that vehicle in front of that vehicle in front of that vehicle in front of that vehicle in front of that vehicle in front.

D. After the instant accident, the Defendant paid KRW 319,424,110 to the deceased E’s damage compensation.

E. The Plaintiff and the Defendant subscribed to the “Mutual Agreement on the Deliberation on the Settlement of Motor Vehicle Insurance Claims”, and the Defendant filed a request with the Plaintiff for deliberation by the Deliberation Committee on the Settlement of Claims (hereinafter referred to as “Deliberation Committee”). On November 30, 2015, the Deliberation Committee calculated the negligence of the Defendant and the Plaintiff’s vehicle on the ground that the Defendant’s vehicle entered the intersection on the speed and yellow signal, and the Plaintiff’s vehicle was negligent on the yellow signal on the two-lane, respectively.

F. On December 21, 2015, the Plaintiff paid KRW 154,00,00 to the Defendant on December 21, 2015. [Grounds for recognition] The Plaintiff did not dispute the following: (i) evidence Nos. 11, evidence Nos. 5-1, evidence Nos. 6-2, 3, 5, 8 through 13, evidence Nos. 7-1 through 6, (ii) evidence Nos. 1, 2, and 8; and (iii) the purport of the entirety of the pleadings; and (iv) judgment on the Defendant’s main defense: Determination on the Defendant’s assertion on the assertion of the non-prosecution agreement;

A. The defendant's main defense

1) According to the "mutual agreement on the deliberation of car insurance disputes," all agreements companies shall have the court.

A request for deliberation shall be made prior to filing a lawsuit (Article 18). A petitioner may file a lawsuit regarding a claim for compensation which is subject to the decision of the Review Committee within 14 days from the date he/she is notified of the decision of the Review Committee (Article 26(1)). If a petitioner or respondent fails to file a request for review prescribed in Article 25 or file a lawsuit prescribed in Article 26 within 14 days from the date he/she is notified of the decision of the Review Committee (Article 27(2)), the decision of the Review Committee shall become final and conclusive (Article 27.2). Therefore, the Plaintiff cannot file a lawsuit with the court on the ground of the claim for compensation related to the accident, and the claim for return of unjust enrichment shall not be made after 14 days from the date he/she is notified of the decision of the Review Committee. As such, the Plaintiff filed a lawsuit more than one month after receipt of the decision of the Review Committee, the instant lawsuit shall be dismissed as a lawsuit that

B. Determination

1) The plaintiff and the defendant have subscribed to the "mutual agreement on the deliberation of a claim for reimbursement of automobile insurance disputes"; the defendant filed a claim against the plaintiff for the deliberation of a claim for reimbursement of the accident of this case; Article 26 of the above agreement provides that "the claimant may file a lawsuit, etc. on the claim for reimbursement disputes which are subject to the decision of the Deliberative Committee within 14 days from the date on which he received a notice of the decision of the Deliberative Committee" under paragraph (1) and Paragraph (2) of the same Article provides that "the respondent may file a lawsuit, etc. on the claim for restitution of unjust enrichment against the claimant after performing the same obligation as the disposition of the Deliberative Committee for the mediation decision," which provides that "the respondent may file a lawsuit on the claim for restitution of unjust enrichment against the

2) According to the provisions of the above agreement, in particular the language and text of Article 26(2), both the claimant and the respondent may institute a lawsuit against the decision of the resolution of the dispute over the amount of indemnity, but unlike the case of the claimant, the lawsuit for the request for the return of unjust enrichment brought by the respondent, unlike the case of the claimant, appears to be without any limitation of the 14-day period for filing the lawsuit. As seen earlier, the plaintiff is the defendant and the plaintiff is in the position of the respondent, and therefore, the plaintiff is not subject to the restriction of the 14-day period for filing the lawsuit.

3) Therefore, the Defendant’s assertion on a different premise is without merit.

3. Determination on the Plaintiff’s claim for merits: Determination on Plaintiff’s non-performance of fault

A. The plaintiff and defendant's assertion

1) The Plaintiff asserts that the instant accident occurred due to the total negligence of the Defendant’s vehicle, and that the Plaintiff paid the indemnity amount premised on the negligence to the Defendant as above, even though there was no negligence on the Plaintiff’s vehicle, the said amount should be returned to the Defendant with unjust enrichment.

2) In regard to this, the Defendant: (a) the percentage of negligence determined in the above decision is appropriate; (b) the deliberation and decision is finalized pursuant to Article 27(1) of the above Agreement; and Article 28(1) of the above Agreement is deemed to have the same effect as the agreement reached between the Plaintiff and the Defendant on the disposition of mediation; (c) so, the final decision of deliberation and mediation of the instant case is neutrally binding on the source, the confirmation and decision of the agreement of the Defendant, which resolved by mutual concession of the dispute arising from the payment of other amount of indemnity in the instant accident; and (d) thereby, it constitutes a compromise contract under the Civil Act and thereby constitutes a new legal relationship

B. Determination as to whether a compromise contract is concluded

As seen earlier, the Defendant’s argument that the Defendant’s foregoing argument is entitled to bring a lawsuit against the decision of the Deliberation Committee by the Health Manager and the respondent. As such, the above decision cannot be deemed to have a creative effect as a settlement contract between the parties. Therefore, this part of the Defendant’s argument is without merit. Determination of the percentage of

1) Facts of recognition

A) The circumstances surrounding the instant accident are as seen earlier.

B) Furthermore, according to the aforementioned evidence, it can be acknowledged that there was no separate sign, such as red signal, left turn signal, or walking signal to the left, on the signal apparatus installed at the intersection in the front bank, even though the surface sign allowing a U-turn was installed on the one lane in which the Plaintiff’s vehicle was driven at the location of the instant accident.

2) Determination on the ratio of negligence

A) According to Article 18 (1) of the Road Traffic Act, drivers of motor vehicles and riders of horses shall not cross, walk, or backward the road while driving their motor vehicles and riders of horses in cases where it is likely to impede the normal flow of traffic of pedestrians, other motor vehicles and riders of horses. In such cases, where no separate sign is attached to the electric signal apparatus, such as at the time of left-hand turn or the walking signal turn-on, etc., the driver of a motor vehicle who intends to drive a U-turn in the U-turn permitted area may do so when it is unlikely to impede the normal flow of pedestrians, other motor vehicles and riders of horses according to the traffic method pursuant to Article 16 (1) of the Road Traffic Act, and the signal apparatus at the front side is not necessarily changed to the left-hand signal. In such cases, the driver of a motor vehicle and riders of horses shall not drive the motor vehicle and riders of horses, but if the other motor vehicle violate the signal system, the negligence of the U-turning motor vehicle may be written.

B) In addition, it is sufficient for other vehicles to observe traffic regulations and take appropriate measures to avoid collision in the U.S. Permission Zone after the signal signal of signal installed at the intersection has been changed to red lights, and the driver of the U.S. is deemed to have no duty of care to take special measures to prevent the occurrence of accidents in advance, as it is anticipated that other vehicles would also observe traffic regulations and take appropriate measures to avoid collision, barring special circumstances. However, if the signal of the signal installed at the intersection is changed to red lights, the driver of the U.S. would not interfere with normal traffic of vehicles and horses, and if the other vehicle continues to enter the intersection immediately after the change to the stop signal, he/she shall have a duty of care to take measures to prevent the occurrence of accidents in accordance with the said provision. However, if the driver of the vehicle in the U.S. is deemed to have not interfered with normal traffic of vehicles and horses at the intersection, or if the other vehicle continues to have entered the intersection, he/she shall have a new duty of care to prevent the occurrence of the vehicle immediately after the change to the intersection.

C) With respect to this recommendation, as at the time of the instant accident, it is possible for the Plaintiff’s vehicle to enter the intersection immediately after the end of the straighten signal of the intersection and the yellow light enters. Thus, the Plaintiff’s vehicle should have verified the vehicle prior to the U.S. on the U.S., and should have checked the U.S. vehicle. However, even before the red light enters, the Plaintiff’s driver was in the U.S., while leaving the U.S., while leaving the U.S., while leaving the U.S. while leaving the U.S., the Plaintiff’s vehicle continued the U.S. vehicle at the speed of the time of commencing the U.S. vehicle without checking the progress of the other vehicle.

D) Considering the circumstances and process of the accident as a whole, it seems appropriate to calculate the negligence ratio of the plaintiff vehicle and the defendant vehicle at 50:50 (the agency determined that there was no negligence on the part of the driver of the plaintiff vehicle, but the court is not bound by the investigation agency's judgment in determining the negligence ratio, not the fact finding. Meanwhile, according to the evidence No. 8, the appellate court in the related criminal case judged that "the negligence of the plaintiff vehicle illegally appearing" in the occurrence of the accident in this case is very large. And as seen above, the Supreme Court Decision 2004Da2934 Decided June 10, 2005, which was cited by the plaintiff, seems to be appropriate for calculating the negligence ratio of the plaintiff vehicle and the defendant vehicle at 50%. Thus, the plaintiff's claim of this case cannot be accepted on the premise that there was no negligence on the part of the driver of the plaintiff vehicle, or that there was no negligence on the part of the driver of the opposite vehicle, or that the plaintiff's claim of this case is less than 50%.

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed. It is so decided as per Disposition.