[Defendant-Appellee] Defendant 1 and 3 others

Japanese Fire and Marine Insurance Corporation

Heung-gu Fire Insurance Co., Ltd. (Attorney Kang Sung-sung, Counsel for the plaintiff-appellant)

August 31, 2007

Seoul Central District Court Decision 2005Gadan290892 Decided February 6, 2007

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

1. Purport of claim

The defendant shall pay to the plaintiff 126,93,530 won with 5% interest per annum from January 16, 2005 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.

2. Purport of appeal

Of the judgment of the court of first instance, the part against the plaintiff falling under the following shall be revoked. The defendant shall pay to the plaintiff 13 million won with 5% per annum from January 16, 2005 to the delivery date of a copy of the complaint of this case, and 20% per annum from the next day to the day of complete payment.

1. Occurrence of liability for damages;

A. Grounds for liability

(1) Facts of recognition

(A) Around 04:30 on January 16, 2005, Non-party 2 driven by the Non-party 1 (vehicle number omitted) Lebato or car (hereinafter “the instant car”) on the non-party 1’s (hereinafter “the instant car”), while driving along the Olympic Games in the five-lanes located in Seocho-gu Seoul, Seocho-gu, Seoul, along the five-lanes of the distribution intersection, from the distribution intersection to the seat of Kimpo Airport, the non-party 2 did not avoid moving the freight on the number omitted, which was driven in accordance with the five-lane in the same direction, and did not go against the change of the course to the four-lane, and caused the Plaintiff, who was on board the top of the operation of the instant car, to suffer the injury, such as the thalle of the instant car (hereinafter “the instant accident”).

(B) At the time of the instant accident, the Plaintiff: (a) requested the “911 Agency Driving” as an agent; (b) the said 911 Agency Driving consented to it; and (b) caused Nonparty 2, who is an employee, to act on behalf of the Plaintiff; and (c) the Defendant is the insurer that entered into an automobile insurance contract with the said 911 Agency Driving.

(C) Under the terms and conditions of the automobile insurance contract for the above substitute driver, the defendant agreed to compensate for the loss suffered by the insured from the death or injury caused by an accident occurred while the insured died or injured while driving an automobile on behalf of the borrower or the client during the insurance period.

【Ground of recognition】 The fact that there has been no dispute, Gap evidence 1, 2, Eul evidence 3-1 through 3, Eul evidence 1-1 through 8, Eul evidence 2, Eul evidence 3-1 and 2, and the purport of the whole pleadings

(2) According to the above facts, the defendant is liable for all damages incurred by the plaintiff due to the accident of this case as an insurer based on the above agency driver's automobile insurance contract.

B. Whether to limit liability

(1) In light of the parts and degree of the Plaintiff’s injury caused by the instant accident, the Defendant asserted that the Plaintiff did not wear safety belts at the time of the instant accident, and that the Plaintiff’s error was the cause of the occurrence of the instant accident and the expansion of damages therefrom, and thus, it should be taken into account in calculating the amount of damages to be compensated by the Defendant. However, it cannot be inferred that the Defendant’s assertion alone does not lead to the failure of the Plaintiff to wear safety belts at the time of the instant accident, and that the Plaintiff did not wear safety belts, and further, it is insufficient to recognize that the Plaintiff’s error contributed to the occurrence of the instant accident and the expansion of damages, and that there is no other evidence to prove otherwise, the Defendant’s allegation is without merit.

(2) In other words, the Defendant, while under the influence of alcohol at the time of the instant accident, allowed the Plaintiff to drive the instant vehicle with the Plaintiff’s permission from Nonparty 1, the owner of the instant vehicle while under the influence of alcohol, and caused the instant accident. The Defendant asserted that the amount of compensation should be reduced by taking into account the circumstances surrounding the instant boarding and the accident, etc., and thus, the Plaintiff requested the Plaintiff to drive the instant vehicle on behalf of the Plaintiff at the time of the instant accident in order to avoid driving under the influence of alcohol with a drinking-related relationship. The Defendant’s assertion that the Defendant’s failure to reduce the amount of compensation can not be deemed as a very unreasonable consequence in light of the good faith and the principle of equity, and thus, the Defendant’s allegation is not acceptable.

2. Scope of liability for damages

In addition to the following separate statements, the period shall be calculated on a monthly basis. In principle, the period shall be calculated on a monthly basis, but less than a month for the convenience of calculation shall be included on the side on which the amount is less than the won and less than the last month shall be discarded, and the current price calculation at the time of the accident shall be governed by the simple interest rate which deducts the intermediary interest at the rate of 5/12% per month, and the absence of separate statements shall be excluded.

(a) Actual income:

(1) Basic matters: To be stated in the column of the attached amount of damages calculation sheet.

(2) Occupation and career: The plaintiff graduated from the department of dance at ○ University Sports University on August 20, 199, completed the training course at ○ University Education Graduate School on August 20, 2004. On September 6, 2002, the 39th Korean dance Council organized by the Korean dance Association on September 6, 2002, the plaintiff was awarded the first prize in the 25th Seoul dance, which was held by the Korean dance Association on June 27, 2004.

(iii)financial assessment of operating capacity;

(A) The Plaintiff had been working as dance water at the National Foundation from January 2001 to December 31, 2004; from January 1, 2004 to December 31, 2004, the Plaintiff obtained income of at least 1,752,920 won per month from the National Foundation; average 2,056,66 won (it shall be 24,680,000 won/12 months; hereinafter the same shall apply) from 05th of 06th of 00 to 04th of 05th of 05th of 06th of 06th of 06th of 06th of 06th of 06th of 06th of 06th of 06th of 06th of 06th of 06th of 06th of 06th of 06th of 06th of 106th of 106th of 204.

(B) On this ground, the defendant asserts that the plaintiff should not recognize lost income during the period called as public interest service personnel, and considering the purport of the whole argument in Gap evidence Nos. 5-5, the plaintiff was subject to a disposition of convening public interest service personnel who serve in the art field from August 30, 2004 to June 29, 2007, but according to the results of the fact inquiry by the court of first instance, public interest service personnel engaged in the art field are allowed to perform individual creative activities such as national recreation, national or municipal dance group, or personal announcement, and it is recognized that the public interest service personnel who serve in the art field can receive remuneration equivalent to the general staff of the relevant agency because they did not limit the amount of remuneration to public interest service personnel who serve in the general administrative agency. Thus, this part of the defendant's assertion is rejected.

(C) On the other hand, the plaintiff alleged that he had earned income from the level of KRW 4,56,723 per month at the time of the accident of this case, but it is difficult to view that the above fact alone was the fact that the plaintiff had earned income exceeding the above amount recognized, and there is no other evidence to support this, and therefore, the plaintiff's above assertion is

(d)the ratio of loss of occupational disability and labour capacity;

(A) The Plaintiff lost the labor ability of 100% from the date of the instant accident until April 19, 2005, 27% from the next second year to January 15, 2007, and 13.50% from the next three years due to pain due to crypting, and physical restrictions (i.e., item I-A-1-a (a), and occupational coefficient 5).

(B) Meanwhile, the Plaintiff asserted that the Plaintiff lost 100%’s labor ability from the date of the instant accident until January 5, 2006 from the date of the completion of the wearing of the light aids. However, there is no evidence to prove that the Plaintiff lost 100%’s labor ability by wearing the light aids from January 5, 2006 due to the instant accident. Therefore, the part exceeding the above recognized limit among the Plaintiff’s assertion is rejected.

[Ground of recognition] without any dispute, Gap evidence 3-1 through 5, Gap evidence 4-5, Gap evidence 1-7, Gap evidence 7, the result of the physical appraisal entrusted to the head of the Korea University Medical Center at the first instance court, and the result of the fact inquiry, empirical rule, significant fact-finding, and the purport of whole pleadings

(5) Calculation: A statement in the column of actual income in the annexed sheet of calculation of damages.

(b) Active damages;

(1) Costs of purchasing assistive devices, etc.

On January 21, 2005, the Plaintiff spent KRW 400,000,00 as the rental fee for the rupture auxiliary equipment, and KRW 80,000 as the purchase cost of the rupture auxiliary equipment on April 19, 2005, respectively.

【Identification Evidence Evidence Nos. 8-1 and 2-2, and the purport of the whole pleadings

(2) Nursing expenses

The plaintiff alleged that 2,500,000 won was paid as opening expenses for the period during which the plaintiff received hospital treatment due to the instant accident. However, there is no evidence to acknowledge that the plaintiff could not engage in daily activities, such as mobility, meals, water supply, bathing, bathing, partheat and urology, and clothes velarying, while being hospitalized, and thus, should have received special assistance from others in addition to ordinary nursing. Thus, the plaintiff's above assertion cannot be accepted.

(c) Mutual aid;

(1) Whether an amount equivalent to the Plaintiff’s negligence out of the payment treatment expenses is deducted

The defendant asserted that the part corresponding to the rate of negligence of the plaintiff out of 8,145,910 won paid to the plaintiff as medical expenses is exempted from its payment obligation by the defendant, and thus, it should be deducted from the amount of damages that the defendant should compensate in lieu of offsetting the plaintiff's damage claim against the defendant with unjust enrichment return claim. As seen earlier, it is difficult to view that there was any error in relation to the occurrence of the accident of this case and the expansion of damages, and therefore, the defendant's above assertion is rejected.

(2) Liability insurance premium deduction

(A) On the other hand, the defendant asserts that the defendant should deduct the liability insurance amount from the plaintiff's property damage amount to be compensated by the defendant on the premise that the plaintiff's assistant participant who entered into the automobile liability insurance contract with respect to the automobile of this case is liable to pay KRW 13,00,000.

(B) The term "other person" under Article 3 of the Guarantee of Automobile Accident Compensation Act merely refers to a person who operates an automobile for one's own sake and a person other than the driver of the automobile in question (see Supreme Court Decision 2000Da66393, Nov. 30, 201, etc.). Meanwhile, in full view of the evidence mentioned above and evidence Nos. 3 and 5-1 and 2's arguments, the defendant is liable for damages exceeding the amount of liability insurance for damages to the plaintiff in the case of a substitute driver insurance contract (including damages for delay). However, in light of the fact that the plaintiff agreed not to deduct the amount of liability insurance if it is not paid, the plaintiff is deemed to have been responsible for driving of the automobile in question with the non-party 1 who is the owner of the automobile in question at the time of the accident, and the plaintiff is deemed to have been responsible for driving of the automobile in question with the non-party 1 who is an agent for driving under the permission of the plaintiff 1.

(C) Furthermore, the amount of liability insurance premium payable to the Plaintiff under the above liability insurance is examined; the degree of injury suffered by the Plaintiff constitutes class 2 injury for which the maximum amount of liability insurance premium under Article 3(1)2 of the former Enforcement Decree of the Automobile Accident Compensation Guarantee Act (amended by Presidential Decree No. 18312 of March 17, 2004) is 8,000,000 won. The degree of the remaining disability is recognized as constituting class 14 disability for which the maximum amount of liability insurance premium under Article 3(1)3 of the above Enforcement Decree is 5,00,000 won and 13,000,000,000 won (=8,000,0000 +5,0000,000 won) is to be paid to the Plaintiff, and the Defendant is obligated to deduct the above damages from the above damages exceeding the maximum amount of liability insurance premium under Article 3(1)3 of the above Enforcement Decree.

(D) The Plaintiff’s property damage amount after deduction: 18,79,961 won = (31,319,961 won + 480,000 won, such as purchase cost, etc. of subsidies - Insurance money 13,00,000,000 won)

(d) Condolence money;

(1) Reasons for taking into account: Plaintiff’s age, occupation, family relation, property level, circumstance of the occurrence of the instant accident and degree of negligence on both sides, degree and degree of injury and disability, and all other circumstances revealed in the instant argument.

(2) Amount recognized: 5,000,000 won

3. Conclusion

Therefore, the defendant is obligated to pay to the plaintiff 23,79,961 won (18,79,961 won for property damage + consolation money 5,00,000 won) and damages for delay calculated at the rate of 5% per annum under the Civil Act from January 16, 2005, which is the date of the accident of this case until February 6, 2007, and 20% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the next day to the date of full payment. Thus, the plaintiff's claim of this case is justified within the scope of the above recognition, and the remaining claims are dismissed for lack of merit. The judgment of the court of first instance is justified, and it is so decided as per Disposition by the assent of all participating Justices.

[Attachment Table of Calculation of Damages]

Judges Ahn Young-hun (Presiding Judge) and Cho Chang-hun;