In a case where a substitute driver in cooperative relations with Gap corporation operating the call center, Eul company as the named insured, Eul company as well as Eul company as Eul company, entered into an insurance contract with Byung insurance company as Eul company's partner, and entered into a substitute driver's license agreement with Byung company, and notified a substitute driver's license in relation to the above driver's license company as a substitute driver's license, and caused a traffic accident while operating a vehicle, the case held that the judgment below erred by misapprehending the legal principles in holding that the act did not constitute "a person who drives an insured motor vehicle for life insurance" as stipulated in the above driver's license agreement.

In a case where: (a) concluding a call number sharing contract with Gap corporation operating a call center with an independent call number, the operator of Eul agency operating company as Eul company as Eul company's named insured; and (b) the substitute driver of Eul company as well as Eul agency operating officers belonging to other partner companies as Eul company entered in the driver's specifications; and (c) the designated driver of Eul company as well as Eul company entered into an insurance contract with Byung company as an accident that occurred during the commission of driving; (d) the designated driver'sless officer listed in the above driver's statement was notified of the allocation of the substitute driver's license as a personal portable device by another call center, which is a cooperative relationship with Gap company as Gap company, and caused a traffic accident while driving the automobile entrusted by the customer, the court below erred in the misapprehension of legal principles as to the designated driver's license insurance contract; and (e) it can be deemed that the designated driver's license is indirectly requested by the designated driver's license company as well as the designated driver's license company as the designated driver's license insurance company as the designated driver's.

Article 105 of the Civil Act, Article 665 of the Commercial Act

[Plaintiff-Appellee] Insurance Co., Ltd. (Law Firm Hun-Hun, Attorneys Jeong Jong-chul et al., Counsel for plaintiff-appellee)

Defendant (Attorney Hwang Tae-young, Counsel for defendant-appellant)

Busan District Court Decision 2011Na11402 Decided February 9, 2012

The judgment below is reversed, and the case is remanded to Busan District Court Panel Division.

The grounds of appeal are examined.

1. Factual basis

Review of the reasoning of the lower judgment and the record reveals the following facts.

(1) The Defendant is a substitute driver who belongs to the “○○ Agency Driving” of Nonparty 1’s operation, and the “○○ Agency Driving” or “△△△△△△△ Call” is a substitute driver who has a relation to the so-called collaborative company by concluding a call number sharing contract with the call company, which is a call company (hereinafter “the call”).

(2) Call companies operating call centers with independent call numbers, such as Ocheon, and their subcontractors, and substitute drivers belonging to their subcontractors and subcontractors, and their clients, generally commission a substitute driver to run on behalf of call companies with the numbers of call companies. ② The call center in the call center in receipt of it directly contact the substitute driver belonging to the partner with the personal portable device. ③ The substitute driver in receipt of it is the process of driving on behalf of the customer and receiving the operating fee from the customer after searching for the customer at the customer’s location. ④ The substitute driver in receipt of it pays the call operating fee, etc. to the call company among the operation fees received from the customer, and pays the remainder of it.

(3) Meanwhile, the subcontractors enter into a call number sharing contract with one or several call companies. The Defendant’s “○○ Agency Driving Co., Ltd.” was in a cooperative relationship with the Orcheon and the drupture Co., Ltd. (hereinafter “dupture”) to which the Defendant belongs. In addition, Orcheon and the dupture, which received a request for a substitute driving on their call center, but failed to carry out a substitute driving due to a shortage of a substitute driving engineer, are given a call to the other call company to prevent the cancellation of the substitute driving entrustment, so that the substitute driving engineer belonging to the subcontractor can carry out a substitute driving on his behalf.

(4) The Plaintiff, an insurer, entered into the instant insurance contract with Nonparty 2, who operates a collaborative company called “△△△△△△△△△”. Article 1(1) of the instant special terms and conditions of the instant insurance contract (hereinafter “the instant special terms and conditions”) provides that “The damages of the insured shall be limited to the insured’s damages arising from the insured’s accident during the cover period from the time the insured was entrusted with the insured for the substitute driving to the time of delivery of the insured’s vicarious driving process.” Article 2(1) provides that “I, as the insured, as the insured under the insurance policy (hereinafter “the named insured”) and the named “I, as the named “I,” the named “I, as the named “I,” the named “I, as the policyholder,” and “I, as the designated passenger driver or the named “I,” the named “I, as the designated passenger driver under the insurance policy,” and “I, as the named “I, as the designated passenger driver or the named “I, as the designated passenger driver” for the insured’s.

(5) Under the instant insurance policy, the registered insured is “△△△△ Call” and the driver’s statement contains approximately 50 substitute drivers, including the Defendant. Of them, the number of employees belonging to “△△△△△” operated by Nonparty 2 is about 10, and the remainder of the substitute drivers belong to the subcontractor who are in cooperative relations with the Defendant, including “○○ Agency Driving (gold)” to which the Defendant belongs.

The reasons stated in the driver statement of the instant insurance contract are as follows. In other words, as the insurer demands minimum number of persons with respect to the scale of the substitute driving engineer belonging to the insured in the insurance contract for the substitute driver, the subcontractor of the Orcheon-gu divided the named insured into “△△△△△△ Call” and “△△△ Call” and entered the substitute driving engineer belonging to the driver's statement. In the process, the Defendant entered the name of the named insured as the substitute driving engineer belonging to the “△△△△△△△△ Call” in the driver's statement, and the Plaintiff was aware that the substitute driving engineer belonging to other affiliate companies, not the “△△△△△△△ Call”, was also entered in the driver's statement at the time of the instant insurance contract.

(6) The insurance premium under the instant insurance contract is calculated by the number of substitute drivers listed in the driver’s statement. The substitute driver stated in the driver’s statement bears the total amount of the insurance premium. The Defendant also paid KRW 62,000 per month to “○○ Agency Driving” as the insurance premium under the instant insurance contract.

(7) Around 01:53 on January 9, 2009, Nonparty 3, as the owner of the instant vehicle, requested a substitute driver with the call number of the dlim call, and the dlim call center received it and notified the Defendant that it was allocated as a substitute driver via the personal portable device. Accordingly, the Defendant sent the instant traffic accident that conflicts with Nonparty 4 while driving the instant vehicle with Nonparty 3.

2. The judgment of the court below

The court below held that: (a) “△△△△△ Call” is an entity which is unrelated to the Dlim call, which is only a partner company of Orcheon, and is actually a partner company of Orcheon, and, (b) if the Defendant is responsible for the instant insurance contract even when ○○ Motor Vehicle Driving was requested to do so on the ground that the Defendant has a cooperative relationship with Orcheon Motor Vehicle Driving, it is not reasonable for the Plaintiff to assume all the responsibility of the Plaintiff even if ○○ Motor Vehicle Driving was extended to the area of its risk without establishing a cooperative relationship with another call company; (c) if the Defendant, as a partner company of Orcheon, does not have to have a more reasonable predictability of the Plaintiff; and (d) if it appears that it would result in an expansion of the scope of the Plaintiff’s license with another call driving company, it would be reasonable for the Defendant to view that it would not have any alternative driver’s license as an agent of the Plaintiff’s insurance company to have any alternative driver’s license more extended to the area of the Plaintiff’s license.

3. Judgment of the Supreme Court

However, it is difficult to accept the above determination by the court below that the defendant is not a person who drives an insured motor vehicle for the "registered motor vehicle" solely on the ground that the defendant was a substitute driver through another call company, not Ocheon Call, for the following reasons.

In addition to the purpose of the insurance contract of this case, when the accident occurred while acting as an agent in the insurance contract of this case, the plaintiff entered into the insurance contract of this case in order to compensate the damage of the substitute driver and the substitute driver belonging thereto, it is reasonable to deem that the actual party to the insurance contract of this case knew and consented to the fact that the name of the named insured is "△△△△△△△△△△" only because the name of the named insured is a subcontractor belonging to the designated driver stated in the driver statement. Thus, even if the named insured is "△△△△△△△△△△△△" under the insurance contract of this case, the actual registered insured is deemed as including the "○○ driving as agent" to which the defendant belongs, and the designated driver as described in the driver statement belongs.

Furthermore, as seen earlier, the process of vicarious driving in reality does not go through a cooperative company, and it is notified that a vicarious driving engineer belonging to a cooperative company listed in the driver statement of the insurance contract was assigned as a vicarious driving engineer using a personal portable device, and if the vicarious driving engineer is paid part of the fee that he/she received as a commission from a vicarious driving driver, he/she can be deemed to have been indirectly commissioned by the cooperative company through the call center, even though the subcontractor did not receive a commission from a vicarious driving driver, and the vehicle can be deemed to fall under a motor vehicle under management after being entrusted by the vicarious driving driver for the vicarious driving. Accordingly, it is reasonable to view that the vicarious driving engineer falls under the case of a vicarious driving driver's being entrusted with the vicarious driving business by a vicarious driving driver.

Therefore, in this case, it is reasonable to view that the Defendant constitutes a person who drives the instant motor vehicle, which is an insured motor vehicle, in order to run the business of acting as an insured person, which is the de facto named insured person who was requested by Nonparty 3 as an agent by Nonparty 3, as falling under the category of a person who drives the insured motor vehicle for the named insured “the special terms of this case.” It does not change solely because the substitute driver, who is not the party to the instant insurance contract, is generally aware of the identity of the designated motor vehicle based on the representative number of the call company, and

Nevertheless, the lower court determined otherwise on the grounds stated in its reasoning that the Defendant did not constitute “a person who drives an insured motor vehicle for life-sustaining insured” of the instant special terms and conditions, which is erroneous by misapprehending the legal doctrine on the interpretation of insurance contracts.

4. Conclusion

The lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-young (Presiding Justice)