2015 Ghana 17264 Confirmation of Non-existence of Obligation

A person shall be appointed.

A person shall be appointed.

April 12, 2016

May 10, 2016

1. On November 14, 2015: around 20, the Plaintiff confirmed that there is no liability for damages against the Defendant in relation to salvage and towing with respect to ○○○ motor vehicle owned by the Defendant from the 516th day of the 516th day of the Dobong-dong in Jeju-si.

2. The costs of the lawsuit shall be borne by the defendant.

The order is as set forth in the text.

1. Basic facts

A. The plaintiff is a person who has entered into an emergency transport service agency contract with D Co., Ltd. (hereinafter "D") while carrying on the vehicle towing business under the trade name of "C", and the defendant is the owner of ○○○ Automobile (hereinafter "the automobile of this case") who has entered into an insurance contract with D for the automobile of this case.

B. On November 18, 2015: around 47, the Defendant: (a) driven the instant motor vehicle and driven the instant motor vehicle on the 516 road in the Dobong-dong, Jeju-si; (b) the instant motor vehicle was cut off on the broom and turned away from the road to the unsloping roads outside of the road (hereinafter “instant accident”).

C. The Defendant requested D emergency transport services, and the Plaintiff called the scene of the instant accident around 14:20 on the same day, and performed salvage and towing of the instant automobile.

[Grounds for Recognition] Unsatisfy, entry or video of Gap evidence 1 to 3 (including each number), the purport of the whole pleadings

2. The parties' assertion

A. The defendant's assertion

The part of the roof of the instant vehicle was destroyed by the Plaintiff’s employee’s string of the instant vehicle, without putting the said vehicle down on the road by click, by lowering the floor of the instant vehicle. In the process of immediately putting the instant vehicle over by towing the towing part and showers, the Plaintiff’s employee did not pay a careful attention, thereby cutting off the front side of the instant vehicle, and did not notify in advance of the vehicle damage that may occur during the work.

Therefore, the Plaintiff should compensate the Defendant for damages incurred in the course of salvage and towing of the instant motor vehicle.

B. The plaintiff's assertion

The plaintiff's employee notified the defendant of the fact that the vehicle could be damaged in the course of the salvage and towing of the instant automobile, and since all of the duty of care normally required, there is no liability for damages against the defendant.

3. Determination

In a lawsuit seeking confirmation of existence of a pecuniary obligation, if the plaintiff, who is the debtor, claims first and denies the fact that the cause of the occurrence of the obligation exists by specifying the claim first, the defendant, the creditor, bears the burden of assertion and burden of proof as to the requirement of legal relationship (see Supreme Court Decision 97Da45259 delivered on March 13, 198, etc.).

In light of the following circumstances, Gap evidence Nos. 1 through 3, Eul evidence Nos. 2 (including each number), and Eul evidence Nos. 2, and the overall purport of visual and oral arguments, i.e., ① if the plaintiff's employee opened a vehicle on the road after putting the vehicle on the cler, then putting the vehicle on the road, it seems that the part above the roof of the instant vehicle would have been seriously damaged, ② the damage on the roof of the instant vehicle at present is highly likely to have occurred from the instant accident that had been restored to a slope by getting the vehicle out of the road, ② the damage on the roof of the instant vehicle at present, was caused by the instant accident that had been restored to a slope way. ③ The damages, such as the screen, etc. on the side of the instant vehicle, might be inevitable, even if the plaintiff's employee did not notify the defendant that the vehicle could be damaged in the course of salvage and operation, even if any, it could be anticipated that the vehicle could be towed in light of the empirical rule.

In full view of the facts that the defendant did not seem to have suffered excessive damage, it is insufficient to recognize the defendant's assertion that the evidence alone submitted by the defendant was insufficient to recognize that the plaintiff's employee excessively damaged the motor vehicle of this case by violating the duty of care to normally perform salvage and towing of the motor vehicle of this case, and there is no other evidence to acknowledge it.

Therefore, it is reasonable to deem that there is no liability of the Plaintiff for damages against the Defendant in relation to the salvage and towing of the instant automobile, and as long as the Defendant contests this, the Plaintiff has a benefit to seek confirmation of the existence of the obligation.

4. Conclusion

If so, the plaintiff's claim is reasonable and acceptable.

Judges Lee So-young