Plaintiff (Attorney Park Young-chul, Counsel for the plaintiff-appellant)

Heung Fire and Marine Insurance Co., Ltd. (Law Firm Han-chul, Attorney Kim Yong-nam, Counsel for defendant-appellant)

April 18, 2012

1. The defendant shall pay to the plaintiff 36,00,000 won with 6% interest per annum from September 17, 201 to June 1, 2012, and 20% interest per annum from the next day to the day of complete payment.

2. The plaintiff's remaining claims are dismissed.

3. One-fifth of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

The defendant shall pay to the plaintiff 45 million won with 6% interest per annum from September 17, 2009 to the service date of a copy of the complaint of this case, and 20% interest per annum from the next day to the day of complete payment.

1. Basic facts

On August 11, 2009, the Plaintiff entered into a comprehensive automobile insurance contract (hereinafter “instant insurance contract”) with the Defendant, an insurance company, and its owner (vehicle No. 1 omitted) with respect to options for automobiles with an insurance company during which the Plaintiff and its insured period were from August 11, 2009 to July 14, 2010. Of these, the term “self-physical accidents” portion is limited to KRW 15,000,000,000,000,000,000,000,000,000,000,000,000, as follows:

1. Details of compensation;

(1) An insurance company shall indemnify the insured for any loss incurred when the insured died or was injured due to an insured motor vehicle accident that occurred during the possession, use, or management of the insured motor vehicle.

(2) The types and limits of the insurance proceeds that the insurance company pays to its own physical accidents are as follows:

(2) Injury insurance money: It shall be paid to the insured as injury insurance money the expenses actually spent (including sex surgery expenses) in accordance with the "The Criteria for Payment of Self-Physical Accidents" 1) in accordance with the "The Classification of Injury and Table of Amount of Insurance Coverage of Grade 2" when the insured requires medical treatment as a direct result of the injury suffered by the insured.

(3) A benefit from the latter disability: The insured amount by each disability grade as stated in the insurance policy shall be paid to the insured as the benefit from the latter disability in accordance with the table of the standard for payment of the latter disability and the amount of insurance coverage for each grade when the insured's physical disability remains after being treated as a direct result of the injury.

(3) An insurance company shall pay the insurance money after deducting the deductible amount from the “compensation for one’s own physical accident”.

Insurance money to be paid = Indemnity for self-physical accidents - Amount deducted.

(4) The "compensation amount for one's own physical accident" in the above (3) shall be calculated as follows:

(3) Where his/her body remains disabled after treatment.

Medical expenses actually spent within the limit of the purchase amount of insurance for each injury up to the disability, + Insurance proceeds of residual disability

(5) The amount of the credit under (3) above refers to:

(1) In the event that the sum of the amounts entitled to compensation by automobile insurance I and II, and the amounts of self-physical accident compensation calculated under the above (4) exceeds the actual amount of damages, such excess amount: Provided, That if the deductible amount is negative (-), it shall be calculated as zero.

Amount to be deducted = Amount to be compensated pursuant to Class I, II, + Amount of indemnity for self-physical accidents - Actual amount of damages

2. If the insured fails to wear a safety mark (referred to as "safety belt" in the terms of the above terms and conditions) while on board at the time of the accident, an amount equivalent to 20% of the driver's seat or the seat next thereto in the amount of self-physical accident compensation calculated pursuant to the above (4) and 10% of the back seat (hereinafter referred to as "the terms and conditions of reduction in this case").

On September 17, 2009, the Plaintiff driven the said car with an emergency treatment of 0.191% of alcohol concentration 0.1%, such as blood alcohol concentration 0.43, and proceeded from the e.g., Chungcheongnam-gu, Chungcheongnam-gun, Chungcheongnam-gun, Chungcheongnam-do, to the e.g., from the e., Siljin-gun, Chungcheongnam-do, the Plaintiff: (a) was driven by the driver; (b) was driven by the (vehicle No. 2 omitted); (c) was driven by the following Nonparty 2’s (vehicle No. 2 omitted); and (d) was driven by the driver for an emergency treatment, such as an emergency c.m., due to the serious injury; (c) was conducted by the driver; (d) was 1% of the two parts of the labor ability assessment table prescribed; (e.g., the e., the e., the e., e., c., the e., permanent disability; and (d) 3% of the e.

The Plaintiff filed a lawsuit against the Korea Green Insurance Co., Ltd., which concluded the said car comprehensive insurance contract with respect to the said rocketing car + KRW 994,563,404 (the amount of KRW 439,732,00 + the amount of KRW 414,379,818 + the amount of KRW 115,583,150 + the amount of KRW 58,831,536 + the amount of KRW 58,831,536 + the amount of KRW 80,000 + the amount of KRW 80,000,000 already received and the amount of medical expenses paid directly by the insurance company) and received a decision of recommending compromise from the court (the Seoul Central District Court 2010Da467184).

[Evidence] Facts without dispute, Gap 1 to 6, 10 to 15, each entry, and the purport of the whole pleadings

2. Determination:

A. The parties' assertion

The Plaintiff claimed payment of KRW 45,00,000 of the insurance proceeds of one’s own physical accident under the instant insurance contract, and the Defendant asserted that 20% should be reduced after calculating the insurance proceeds of one’s own physical accident in accordance with the instant reduction clause, since the Plaintiff did not wear safety belts at the time of the accident.

As to the above argument of the defendant, the plaintiff argues that the insurance of his own physical accident is not allowed to reduce the insurance amount on the ground that he was negligent in the insurance accident due to the type of accident insurance for the policyholder or the insured, and that the provision of reduction of 20% of the insurance amount of his own physical accident on the ground that the insurance amount cannot be changed disadvantageously to the policyholder, the insured or the beneficiary due to a special contract between the parties is in violation of Article 739 of the Commercial Act and Article 663 of the Commercial Act, which applies mutatis mutandis under Article 739 of the Commercial Act.

B. Validity of the instant reduction agreement

The insurance of one's own physical accident is a kind of life insurance policy because the insurer is liable to pay the insured amount under the terms and conditions when the insured has suffered an injury due to an accident of the insured motor vehicle occurred while the insured owns, uses, or manages the insured motor vehicle. However, the insurance of one's own physical accident is developed to prepare for the situation where the insured is unable to receive insurance benefits due to an accident of his own own accident or a collision with the insured motor vehicle while operating the insured motor vehicle. In the case of a collision with other motor vehicles, it is not developed to compensate for the insurance in addition to the insurance amount of the insurance that the other motor vehicle has bought, or to compensate for the remainder of the insurance amount that has not been compensated. ② The insured subject to one's own physical accident insurance under the terms and conditions of the insurance contract of this case is an exception to securing it when the insured has died or has been injured due to the insured motor vehicle. ③ The insurance of one's own physical accident, unlike the general insurance, is included in the comprehensive automobile insurance contract of this case and is not contrary to the nature of the insurance contract of this case.

Furthermore, the purpose of the reduction agreement of this case is to reduce the part arising from reasons other than the insurance accident, if the degree of injury is higher than the original insurance accident as the circumstances of the insured, i.e., the failure to wear the safety belt, added to the circumstances of the insured, which are the cause other than the insurance accident, is to reduce the part arising from reasons other than the insurance accident, and in the case of non-use of the safety belt in the automobile accident, the damage is generally increased, and therefore the insurer clearly expressed its intention not to take over the risk resulting from the non-

In addition, the driver's failure to fasten the safety belt is an intentional criminal act (Article 156 subparagraph 6, Article 50 (1) of the Road Traffic Act) and the intention is to directly harm the vehicle accident that has not increased the damage (in this respect, it is distinguished from driving without a driver's license) and therefore, it is against the good faith and ethics in the insurance contract to compensate regardless of whether to wear the safety belt. Therefore, it is against the good faith and ethics in the insurance contract. Thus, the terms and conditions of reduction in this case provide cases where the insurance accident is caused by an intentional act deemed as a whole, and do not violate Articles 739, 732-2, and 663 of the Commercial Act.

(c) Insurance amount;

In entering into the instant insurance contract with the Defendant, the Plaintiff agreed on the injury insurance amount of KRW 15,00,000 and the maximum amount of KRW 30,000,00 as security for self-physical accidents as seen earlier. Furthermore, the purport of the entire arguments on the evidence above is as follows: (a) it can be acknowledged that the Plaintiff suffered from the aftermath disability falling under subparagraph 3 of attached Table 2 of the Enforcement Decree of the Guarantee of Automobile Accident Compensation Act and subparagraph 4 or 5 of attached Table 1 of the Enforcement Decree of the Guarantee of Automobile Accident Compensation Act; and (b) the sum of the premath treatment costs and future treatment costs for the Plaintiff at least KRW 174,414,686. In light of the above circumstances of the accident, the Plaintiff’s negligence can be assessed to be at least KRW 30%, and thus, the Defendant’s injury compensation amount to the Plaintiff prior to applying the instant reduction agreement shall be paid KRW 15,00,000, KRW 300,00, KRW 3000.

○ Injury Insurance Money

Medical expenses 174,414,686 x 30% (the plaintiff's rate of negligence) = 52,324,405 x the maximum of 15,000,000 won

○ Ex post facto disability insurance proceeds

Amount of indemnity for a self-physical accident 30,000,000 - Amount of indemnity [40,000,000 won that can be compensated pursuant to Class I and II + amount of indemnity for a self-physical accident - KRW 30,000,000,000 of amount of indemnity for a self-physical accident - KRW 1,108,526,504 of actual amount of damages (based on non-applicable standards of comparative negligence and non-applicable limit for compensation): Provided, That where the deducted amount is of negative deposit, it shall be calculated as zero] = 30,00,000 won

3. Conclusion

Therefore, the defendant is obligated to pay to the plaintiff 36,00,000 insurance money and the damages for delay calculated at the rate of 6% per annum under the Commercial Act from September 17, 2011 to June 1, 2012, which is the date of this decision, and 20% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the following day to the date of full payment (the plaintiff is liable to pay damages for delay from September 17, 2009 to September 16, 201, which is the date of accident regarding the above insurance money. However, in this case where there is no special agreement on the time of payment of insurance money, the base date of calculating damages for delay of the above insurance money is the plaintiff's claim for the payment of insurance money (proof of contents as of September 6, 201, evidence No. 16) in accordance with Article 658 of the Commercial Act, and it is reasonable to accept the plaintiff's claim on September 17, 2017.

Therefore, the plaintiff's claim is accepted within the above scope of recognition and the remainder is dismissed.

Judges Kim Jong-soo