Korea Fire & Marine Insurance Co., Ltd. (Attorneys Kim Jong-sung et al., Counsel for the plaintiff-appellant)

Defendant

June 8, 2007

Jeonju District Court Decision 2006Gadan31896 Decided February 14, 2007

1. The plaintiff's appeal is dismissed.

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

On July 8, 2006, the judgment of the first instance is revoked. At around 02:50 on July 8, 2006, it is confirmed that there is no insurance payment obligation of the plaintiff against the defendant with respect to a traffic accident caused by the vehicle (vehicle No. 1 omitted) in the Mexico in front of Mexico.

1. Basic facts

The following facts are not disputed between the parties, or may be acknowledged by adding Gap evidence 1 through 3, Gap evidence 4-1, 2, Eul evidence 1 through 3, Eul evidence 4-1 through 4, Eul evidence 5, Eul evidence 6-1, 2, Eul evidence 8, Eul evidence 1 through 5, and Eul evidence 7-1 through 5.

A. A. Around December 1, 2005, the Defendant entered into a comprehensive automobile insurance contract with the Plaintiff regarding the Defendant’s (vehicle Nos. 2 omitted) car (hereinafter “existing vehicle”) with respect to the insurance period from December 1, 2005 to December 1, 2006, which includes the personal damage I, personal damage II, personal damage II, personal damage, self-physical accident, and injury to the Defendant’s automobile.

B. When an accident occurred while operating an existing vehicle on June 30, 2006 at around 23:30, and the repair cost is anticipated to exceed KRW 500,000,000 as the market price of the said vehicle, the Defendant would scrap the existing vehicle and left the road alone.

C. After that, at around 17:00 on July 7, 2006, the Defendant purchased the instant vehicle from Nonparty 2 (vehicle No. 1 omitted) and paid the price, and received the instant vehicle without completing the transfer of ownership registration in the name of the Defendant, in spite of documents necessary for the transfer of ownership, but without completing the transfer of ownership registration in the name of the Defendant.

D. At around 02:50 on July 8, 2006, the Defendant scrapped the instant vehicle on October 13, 2006, when driving the instant vehicle and driving it on the street in front of Mexico Kinckin, Hawon-dong 1, Anon-si, Hawon-dong, who was without permission crossinging the road (hereinafter referred to as the “accident in this case”), and suffered injury, such as double alleys, etc., by shocking Nonparty 1, who was detained, and thereafter, the Defendant scrapped the existing vehicle on October 13, 2006.

E. The terms and conditions applicable to the said comprehensive automobile insurance contract are as follows:

(1) General Terms and Conditions 20-2-(1)

Where the policyholder or the insured has scrapped or transferred the existing insured motor vehicle during the insurance period, and replaced it with another motor vehicle of the same motor vehicle model, the policyholder shall notify in writing that he/she would have the policyholder succeed to the substitute motor vehicle of this insurance contract, and make a request for approval therefor from the insurance company, and this provision shall apply to the motor vehicle substituted by this insurance contract from the time when the insurance company approves it

(2) Other special terms and conditions of driving security (hereinafter referred to as the “special terms and conditions of this case”).

(A) The instant special terms and conditions automatically apply to injury subscribers by non-insurance vehicles under general terms and conditions.

(B) An insurance company shall consider the other motor vehicle driven by the insured as an insured motor vehicle under normal terms and conditions (except as I) if the insured is legally liable for any personal accident or substitute accident that occurred while driving another motor vehicle, or if the insured has suffered any bodily injury, the insurance company shall compensate in accordance with ordinary terms and conditions by deeming it an insured motor vehicle under normal terms and conditions.

(C) In this case, the term “other automobiles” means private cars which are the same type as the insured automobiles and which fall under any of the following subparagraphs:

(1) Motor vehicles owned or used by an insured person and his/her parents, spouse or children, other than motor vehicles.

(2) Where an insured person who has registered his/her name has replaced a motor vehicle, his/her substitute motor vehicle from the time such fact has occurred until the company has obtained approval under the above

2. The parties' assertion and judgment

A. The parties' assertion

The Plaintiff asserted that the instant vehicle was a vehicle owned or used by the Defendant, and that the Defendant did not notify the Plaintiff that it was replaced by the instant vehicle without scrapping or transferring the existing vehicle, and that the instant vehicle does not constitute another vehicle stipulated in the instant special terms and conditions, and that the Plaintiff did not have an obligation to pay insurance proceeds to the Defendant under the instant special terms and conditions.

In regard to this, the defendant asserts that the vehicle of this case, which is not registered in the name of the defendant, is used for more than two hours on the date of the accident of this case, and constitutes another vehicle stipulated in the special terms and conditions of this case, and the plaintiff is obligated to pay insurance money to the defendant

B. Determination

(1) The contents of the general terms and conditions shall be based on the average customer's understanding potential without considering the intent or specific circumstances of individual contract-holders, and when the contents of the terms and conditions are not clear or doubtful in terms of customer protection, it shall be interpreted disadvantageously to the person who prepared the terms and conditions (see, e.g., Supreme Court Decision 96Da12009, Jun. 25, 1996). In addition to these interpretation criteria, considering that the special terms and conditions in this case aim at compensating the insured for injury in the event of an accident while driving a motor vehicle other than an insured motor vehicle, the provisions on other meaning of the special terms and conditions in this case shall be interpreted as follows.

(2) Pursuant to Article 6 of the Automobile Management Act, the acquisition and loss of the ownership of an automobile shall take effect by registering the acquisition and loss of the ownership of the automobile under its effect. In the case of a difference between the nominal owner of the automobile and the person who enjoys operational control or operational profit from the payment and delivery after the purchase and sale of the automobile, the ownership of the automobile shall be regarded as the owner of the registered title in relation to the third party, such as the insurer. Therefore, the "owned automobile" which is excluded from other special terms and conditions refers to the automobile registered in the name, such as the named insured at the time of the occurrence of the insurance accident. Further, the "automobile ordinarily used" which is excluded from other special terms and conditions of this case refers to the automobile which the insured uses freely for a considerable period of time, as well as the automobile which has been used freely for a considerable period of time (see Supreme Court Decision 200Da60968, Jan. 19, 201, etc.).

In addition, the term "substitute" means the scrapping or transfer of an old automobile and the acquisition of a new automobile, and the issue of whether a new automobile is acquired shall be based on the name in the register of automobile as in the above ownership relationship, and therefore, the substitute vehicle from the time of replacement to the time of approval shall be deemed to mean a new automobile for the period from the time of registration of a new automobile to the time of approval for replacement

According to the above interpretation, the existing vehicle at the time of the accident in this case was not scrapped, and since the defendant did not complete the registration of transfer in the name of the defendant with respect to the automobile in this case, the automobile in this case cannot be deemed to have been substituted for the automobile in this case. Meanwhile, since the automobile in this case was registered in the name of Nonparty 2 at the time of the accident in this case, even if Nonparty 2 lost operating control and operating profit, it cannot be deemed to have been owned by the defendant, and there is no evidence to prove that the defendant had used the automobile in this case freely for a considerable period prior to the accident in this case. Rather, since the defendant cannot be deemed to have freely used the automobile in this case in light of the fact that he purchased the automobile in this case before several times from the accident in this case, the automobile in this case cannot be deemed to have been used by the defendant for a considerable period of time, and therefore, the automobile in this case constitutes a "other automobile" as provided

(3) Therefore, the Plaintiff is obligated to pay insurance money to the Defendant regarding the instant accident according to the instant special terms and conditions.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as it is without merit.

Judges Yu-ro (Presiding Judge)