(영문) 부산고등법원 2009.4.14.선고 2008나18260 판결

The judgment of the first instance shall be revoked. The defendant shall pay to the plaintiff the amount of KRW 331,960,645 with 5% per annum from March 28, 2008 to the rendering of the judgment of the first instance, and 20% per annum from the next day to the day of full payment (the plaintiff is claiming interest in arrears from September 15, 2007 to the purport of the appeal, but this seems to be a clerical error in March 28, 2008).

Reasons

1. Basic facts

The following facts are not disputed between the parties, or may be acknowledged by taking into account the whole purport of the pleadings in each description or image of Gap evidence 1 to 3, Gap evidence 4-1, 2, Gap evidence 5, 6, Gap evidence 7-1 to 5, Eul evidence 1-1 and Eul evidence 2.

가. 원고는 자동차보험업 등 각종 보험사업을 영위하는 보험사업자로서 2004. 4. 27. C과 사이에 그 소유인 부산 XX라XXXX호 승합차(이하 '이 사건 승합차'라고 한다)에 관하여 보험기간을 2004. 4. 27.부터 2005. 4. 27.까지로 하여 업무용 자동차종합보험계약(이하 '이 사건 보험계약'이라 한다)을 체결하였다.

B. The Defendant is a company that engages in general waste treatment, collection, and transportation business. A driver affiliated with the Defendant, who drives a cleaning service vehicle for Busan YYYYYY (hereinafter “instant cleaning vehicle”), which is the Defendant, was parked in the B elementary school playgrounds located in Nam-dong, Nam-gu, Busan YYY (hereinafter “instant cleaning vehicle”), which is located in the Defendant, in January 15, 2005.

D. A around 09:50 on January 16, 2005, on the following day, lent the instant van to one’s own shape C, and became a playground of the said elementary school B. However, on the said playground, A driving the said van in the said playground, due to the mistake that he was unable to safely drive by checking well the right and the right of the front while driving the said wheel while driving the said wheel, he was involved in the injury of V’s head head, which he was seated in the said playground with the front wheels of the left-hand side of the said wheel and was playing through snow, and caused the injury of V, such as double pelle and cerebral cerebral surgery (hereinafter “the instant accident”).

E. On July 12, 2007, V and their families filed a lawsuit for damages claim against the Plaintiff, the insurer of the instant passenger vehicle, by Busan District Court Decision 76138, which was sentenced to the Plaintiff to pay all damages claim amounting to KRW 518,319,054 and delay damages claim amounting to KRW 518,319,054, which became final and conclusive.

F. By March 27, 2008, the Plaintiff paid KRW 663,921,291 in total with insurance proceeds to V, etc.

2. The plaintiff's assertion

A caused the instant accident in order to check the condition of the cleaning vehicle parked before the day before the instant accident occurred while driving the instant passenger vehicle and parking the said cleaning vehicle in order to inspect the condition of the cleaning vehicle parked before the day before the instant accident occurred. Since the accident occurred while A was in the process of preparing for the Defendant’s business, the Defendant, the user of A, by paying insurance money to V, etc., is obliged to pay the Plaintiff, who discharged the Defendant at the indemnity rate of 50% of the Defendant’s liability by paying insurance money to V, etc., with the amount equivalent to 331,960,645 won, which is equivalent to 50% of the Defendant’s liability ratio.

3. Determination

A. Whether the defendant constitutes a third party under Article 682 of the Commercial Act

(1) Under the legal principle of subrogation of an insurer under Article 682 of the Commercial Act, it is difficult to view that the insurer is likely to use, share, or control an automobile with the consent of the named insured, other than the named insured, in the terms and conditions of insurance policy for a third party. ③ Where the Defendant is aware that an insured motor vehicle is engaged in a dangerous business area, and the insured motor vehicle is bound to pay a high amount of expenses to employ an employee who is engaged in such business area, and the company obtains a large profit by having an employee engage in a dangerous business area. On the other hand, it is necessary to establish a system that guarantees damages in order to protect an employee who is an economically weak, because it is not compared to the profit that the company gains. Nevertheless, if the insurer recognizes that the insured, who is the insured, was not liable for subrogation of the insurer for the insured, the insurer cannot ultimately be held liable for damages to the insured motor vehicle itself, which is the cause of the insurer’s fault or negligence, which would result in the insurer’s exercise of the right to reimbursement against the insured motor vehicle owner.

Therefore, in full view of the language and text of Article 682 of the Commercial Act and the above circumstances, even if an employer is not included in the insured and constitutes a third party under Article 682 of the Commercial Act, in order for an employer to conduct a situation, at least to intervene in the act of incurring damages to an employee

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in order to exercise the rights of the contractor or the insured, the

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person who is operating an insured motor vehicle on behalf of such insured person, or who is operating an insured motor vehicle on behalf of such insured person

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The above legal principle is applicable to the absence of the authority to manage or manage by C.

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The employer's act contributes to the loss caused by an insured event solely on the ground that he is in the position.

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The act of the Si, the management and supervision, etc. shall independently contribute to the occurrence of the damage by his/her own act; or

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심급 사건

-부산지방법원 2008.10.28.선고 2008가단197

부산고등법원 2009.4.14.선고 2008나18260

-부산고등법원 2009.4.14.선고 2008나18260

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