2018 Madada9875 Return of Fraudulent Gains

A Federation

Attorney Kang Byung-chul, Counsel for the defendant-appellant

B

Attorney Jeon-ho et al., Counsel for the defendant

September 17, 2019

October 15, 2019

1. The Defendant shall pay to the Plaintiff 31,461,820 won with 15% interest per annum from December 7, 2018 to May 31, 2019, and 12% interest per annum from June 1, 2019 to the date of full payment.

2. The plaintiff's remaining claims are dismissed.

3. Of the costs of lawsuit, 90% is borne by the Defendant, and the remainder 10% is borne by the Plaintiff, respectively.

4. Paragraph 1 can be provisionally executed.

The defendant shall pay to the plaintiff 31,461,820 won with 5% interest per annum from October 25, 2018 to the delivery date of a copy of complaint, and 15% interest per annum from the next day to the day of complete payment.

1. Facts of recognition;

A. At around 16:50 on May 31, 2018, D, a route bus driver, driven a route bus belonging to C (hereinafter referred to as “instant bus”) with two-lanes of the two-lane road in front of the city of Jeju, which is located in the southwest road along the two-lanes of the two-lane road in front of the city of Jeju, and stopped at the center-distance bus stop at the center-distance bus stop in front of the H restaurant located in Jeju city of Jeju.In the process D re-enters the instant bus, the Defendant, who was located in the part of the delivery of the bus stop in front of the instant bus, going beyond the road driven by the bus of this case while going beyond the left side of the bus of this case, was shocked with the rear wheels of the instant bus of this case, and went off on the left side of the road requiring a treatment at approximately six weeks of the left side of the bus of this case (hereinafter referred to as “the instant accident”).

B. On June 7, 2018, the Defendant received hospitalized treatment, such as cutting knee below the left-hand kne and drinking-static surgery due to the instant accident. The Plaintiff, a mutual aid business entity that entered into a motor vehicle mutual aid agreement with respect to the instant bus, paid the medical expenses equivalent to KRW 25,61,820 to the medical institution, such as the Gyeongbuk University Hospital, etc. where the Defendant was receiving medical treatment, or to the Defendant, during the period from July 3, 2018 to November 15, 2018. On August 21, 2018, the Defendant paid KRW 5,800,000 to the Defendant’s purchase cost of satisfaction.

[Ground of recognition] Facts without dispute, Gap evidence 1, 3, Eul evidence 1-1, 2, 3, Eul evidence 4, the purport of the whole pleadings

2. The assertion and judgment

A. The parties' assertion

1) The plaintiff's assertion

The instant accident occurred by the Defendant’s total negligence, and even though there was no negligence against D, the Plaintiff paid the medical expenses and the satisfaction purchase cost as a mutual aid business operator. As such, the Defendant is obliged to pay to the Plaintiff the amount of unjust enrichment equivalent to the sum of the aforementioned medical expenses (31,461,8201) and damages for delay after October 25, 2018.

2) The defendant's assertion

After the bus stops, the Defendant asked D of the bus route through the front door in front of the open door, and tried to look at the left hand on the side of the bus to get on the bus of this case, and let off the bus of this case to the road on the side of the bus, but was used on the road surface, which became the center of the wind from which the bus of this case starts as it is, and was used on the road surface. D went off the bus of this case without stopping after the accident of this case. Since D was aware of the fact that the Defendant intended to get on the bus of this case, it was obligated to safely get on the bus of this case and start the bus after getting on the bus of this case. However, even if it was not so, since D had a duty to confirm the existence of passengers or the unique circumstances around it, it was negligent and started the bus of this case and caused the accident of this case, and thus, D violated the duty of rescue and relief, it caused the accident of this case by negligence.

B. Determination

1) In full view of each of the above evidence, Gap evidence Nos. 2, 4, 5, Eul evidence No. 5-1, and Eul evidence No. 5-2, the following facts or circumstances can be acknowledged.

A) According to the screen image (No. 2) taken by the Defendant at the time of the instant accident, it is not confirmed that the Defendant attempted to take passengers, such as examining the right side of the instant bus by hand, in order to board the instant bus, on the right side of the front right side of the instant bus, which was carried out without the Defendant’s action to board the instant bus, including entering or leaving a bridge on the road, etc., more than 1-2 seconds after the bus was stopped, and more than 5 seconds later.

B) The National Scientific Investigation Institute, which analyzed the above video in the course of the investigation of the instant accident, was observed immediately before the instant accident, and thus, deemed the Defendant’s excessive cause is more related to the instant bus, and rather is likely to lose a balance with walking narrow spaces or vavadi, rather than to have a relation with the instant bus.”

C) The witness of the instant accident can be seen as having been given the circumstance that the Defendant stated that he was placed on the bus of this case at the moment when he did not board the bus of this case after asking D about the route of the instant bus to the investigation agency.

D) On June 20, 2018 and August 6, 2018, after the instant accident occurred, the Defendant made a statement to the effect that “the instant accident occurred as to the investigative agency was in excess of clothes in the instant bus,” and the content of the statement seems to be significantly different from the Defendant’s assertion as to the background of the accident.

E) At the time of the instant accident, D stopped at the bus stop at the investigative agency, and confirmed that there was no passenger boarding and leaving the bus stop through the right-side border, and it started at a speed of about five kilometers per hour after shutting the front door and shut down the bus at a speed of about five kilometers per hour due to the lack of recognition of the instant accident, D made a statement to the police that he had to complete the instant accident, and there was no reflect to reverse the contents of D’s statement.

F) On the basis of the investigation results, the police investigating the instant accident is difficult to deem that the instant accident was caused by DNA’s occupational negligence. The Jeju District Prosecutors’ Office sent the case to the Prosecutor’s Office. On August 16, 2018, on the ground that the instant bus is subscribed to the Plaintiff’s comprehensive motor vehicle mutual aid, the police did not have the authority to institute a public prosecution on the ground that it is against the Act on Special Cases Concerning the Settlement of Traffic Accidents (Bodily Injury) caused by the instant accident.

G) At the time of the instant accident, the Defendant is a woman aged 76 years old at the time of the instant accident. The defect in the old light and functional function of the instant bus is not confirmed. Moreover, there is little room to regard that D could not have been aware of the occurrence of the instant accident as the occurrence of the instant accident, whenever it comes to a phenomenon where it is difficult for a bus stopped and parked in the width and structural structure of the instant bus at the site of the instant accident, and as a result, it is difficult to rapidly launch the instant bus

2) In light of the facts and circumstances acknowledged in the above 1, it is reasonable to view that the accident of this case was caused by the circumstance of the defendant since the defendant was stopped on the right side of the bus of this case in order to board the bus of this case and was caused by the accident of this case. Thus, Article 3 subparagraph 2 of the Guarantee of Automobile Accident Compensation Act does not apply to the accident of this case, and it cannot be deemed that D knew or was negligent in not knowing the defendant's attempt at the time of the accident of this case, and it is not recognized that it violated the duty to take relief measures against the accident of this case. Thus, since the accident of this case was not caused by the negligence of the bus of this case in the bus of this case, it is reasonable to view that the accident of this case was caused by the situation of the defendant since the bus of this case stopped to the road operated by the bus of this case for non-commercial reasons.

3) Therefore, inasmuch as the Plaintiff, who is a mutual aid business entity, is obligated to return the Plaintiff’s unjust enrichment as the Defendant acquired treatment costs and satisfaction purchase costs paid as advance payment without any legal ground, the Defendant is obligated to pay the Plaintiff the amount calculated by calculating the annual interest rate of 12% per annum from the date of delivery of a copy of the complaint to December 7, 2018, which is the day following the day of delivery of the complaint, to May 31, 2019, the main text of Article 3(1) of the former Act on Special Cases Concerning Expedition, etc. of Legal Proceedings (amended by Presidential Decree No. 29768, May 21, 2019). Thus, the Defendant is obligated to pay the Plaintiff damages for delay at the rate of 15% per annum from June 1, 2019 to the day of full payment (the Plaintiff’s damages for delay calculated by 20% per annum from the date of delivery of the complaint to May 25, 2018).

3. Conclusion

Therefore, the plaintiff's claim is justified within the above scope of recognition, and the remainder is dismissed as it is without merit. It is so decided as per Disposition.

Judge Lee Jin-hoon

1) "23,341,150 won for treatment of the cause of the claim" is deemed to be 25,661,820 won in writing.