Dongbu Fire and Marine Insurance Co., Ltd. (Law Firm Mono, Attorney Park Ho-ju, Counsel for the plaintiff-appellant)

Samsung Fire & Marine Insurance Co., Ltd. and 2 (Attorney Yoon Jong-dae, Counsel for the plaintiff-appellant)

May 11, 2007

Daegu District Court Decision 2005Kadan97382 Decided October 12, 2006

1. The plaintiff's appeal is all dismissed.

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

1. Purport of claim

The defendants jointly and severally pay to the plaintiff 69,30,000 won and 60,000,000 won among them, 1,800,000 won from June 30, 200 to July 1, 200, 3,497,820 won from July 5, 200 to the last delivery date of each complaint, 4,002,180 won from August 1, 200 to the last delivery date of each copy of each of the complaint of this case, and 5% per annum from the next day to the day of full payment to the day of full payment.

2. Purport of appeal

Of the judgment of the court of first instance, the part against the plaintiff falling under the following order for payment shall be revoked. The defendants jointly and severally pay to the plaintiff 60 million won with 5% interest per annum from June 30, 2000 to the last service date of the copy of the complaint of this case, and 20% interest per annum from the next day to the day of full payment.

1. Basic facts

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1 to 3, 10-3, 21, and 24 of the evidence No. 9-3, 21, and the purport of the whole pleadings

A. Status of the parties

The Plaintiff is a business operator entrusted with the business of guaranteeing motor vehicle accident compensation by the government under Article 26(1) of the Guarantee of Automobile Accident Compensation Act (hereinafter “the Automobile Accident Compensation Act”). Defendant Samsung Fire and Marine Insurance Co., Ltd. (hereinafter “Defendant Samsung Fire”) is an insurer who entered into a comprehensive insurance contract for motor vehicles for business purposes with Defendant 2 (hereinafter “Defendant Company”) regarding cargo vehicles (hereinafter “instant cargo vehicles”).

(b) Accident;

(1) The Defendant Company was justified to use the instant cargo vehicle, which is an employee of Nonparty 2, only for the delivery and discharge of the instant truck, to Nonparty 2, who is an employee of the Defendant Company, and accordingly, allowed Nonparty 2 to store and manage the instant cargo vehicle on the date of discharge and joint ownership.

(2) At around 23:00 on May 6, 200, Nonparty 2: (a) retired from the instant cargo vehicle; (b) immediately, in order to view that Nonparty 3 and other relatives, including Defendant 3, drink with their friendships and play together with their friendships, he was divided into the head of the group and loaded the instant cargo vehicle with their friendships around 04:00 on the following day; and (c) was driven by driving the instant cargo vehicle into the rest area in the middle of the North Cheong-gun-gun, Gyeong-gun.

(3) Defendant 3, who was a person who was on board the mabing, left Defendant 3 with the operation of the instant truck. Defendant 3, while under the influence of alcohol 0.154%, was driving the instant truck, caused the instant truck to fall, thereby causing the instant truck to die, and Nonparty 3 and 4 suffered injury.

C. Defendant Samsung Fire Exemption Notice and Plaintiff’s insurance proceeds

(1) The instant accident occurred when Nonparty 2 used the insurance claim of the victim or his bereaved family members on the personal day without the consent of the Defendant Company, and thus, it goes beyond the scope of the Defendant Company’s management control and operation profit, and thus, the Defendant Samsung Fire notified the Defendant Company of its exemption from liability under the insurance terms and conditions, and refused to pay the insurance proceeds

(2) The victim or his bereaved family members filed an application with the Financial Supervisory Service for the conciliation of the claim for the payment of insurance money due to the instant accident with Defendant Samsung Fire as the respondent with the Financial Disputes Resolution Committee, and requested the Plaintiff to compensate for damages from the liability insurance money in accordance with the motor vehicle accident compensation guarantee business under Article 26(1) of the Act.

(3) On June 29, 200, the Plaintiff paid KRW 60 million to Nonparty 1’s bereaved family members on June 29, 200, KRW 1.8 million to Nonparty 3 on June 30, 200, KRW 1.8 million to Nonparty 4 on July 4, 200, KRW 497,820, and KRW 4,002,180 on July 31, 200, respectively.

On the other hand, on July 25, 2000, the Financial Dispute Mediation Committee dismissed the above application for mediation if the defendant company lost the operation control and operation profit of the freight vehicle in this case at the time of the accident.

D. The result of the bereaved family's claim for damages

On February 3, 2003, the bereaved family members of Nonparty 1 filed a lawsuit against the Defendant Company and Defendant 3 on February 3, 2003 against the Daegu District Court 2003Kadan745, an action against the Plaintiff on the compensation for damages remaining after deducting KRW 60 million from the compensation already paid by the Plaintiff. On March 17, 2004, the Daegu District Court rejected the Defendant Company’s exemption from liability, recognized the Defendant Company’s operating control over the instant cargo vehicle and operational benefits, and sentenced the Defendant Company to partly accept the Defendant Company’s claim for damages, and even at the appellate court of Daegu High Court 2004Na3100, where the Defendant Company appealed, and became final and conclusive on November 24, 2004.

2. Judgment on the plaintiff's claim

A. Whether the instant accident constitutes Article 26(1)2 of the Act

(1) Article 26(1)2 of the Act provides that “If a person who is not an insurance policyholder, etc. (the person who purchased the mandatory insurance and the person who is not the insurance policyholder, etc.) is liable for damages as an automobile operator pursuant to the provisions of Article 3 of the Act, the Government shall, upon the victim’s request, compensate for the damages suffered by him within the scope of the insurance amount of the liability insurance (this is called the government’s guaranteeing of automobile accident compensation business; hereinafter “guarantee business”).

(2) Here, “the case where a person who is not an insured person, etc. is liable for damages” refers to the case where a person who has not subscribed to liability insurance or liability mutual aid (Article 5(1) of the Act) is liable for damages, and the case where an accident was not compensated in the insurance or mutual aid contract, and thus, the person liable for damages is not entitled to claim insurance money from an insurance company or mutual aid business operator, and further, the case where an insurance company which entered into an automobile insurance contract with an insured vehicle which caused a traffic accident as an insured automobile has refused payment of insurance money on the ground of the indemnity clause for the reason that the accident was caused by unauthorized Driving of the victim, even though it is not objectively clearly revealed that the liability for compensation of the insurance company is not an insurance policyholder, etc. under Article 26(1)2 of the Act.

(3) In the instant case, the Plaintiff refused to pay the insurance money on the ground that the instant truck’s accident occurred due to Defendant Samsung Fire, the insurer of the instant truck, on the ground that the instant accident occurred due to Defendant 3’s unauthorized driving, and was not clearly identified as to whether Defendant Samsung Fire is liable for compensation for damage arising from the guaranteed business and compensated for the amount equivalent to the amount of the liability insurance money. Therefore, the Plaintiff’s compensation payment is in accordance with Article 26(1)2 of the Act.

B. The Plaintiff’s right to indemnity against the Defendants and its contents

(1) The insurer's subrogation and the claimant's subrogation

(1) Article 31(1) of the Act provides that in case where compensation has been made for damage under the provisions of Article 26(1) of the Act on the part of the victim, a person who is liable for damage under the provisions of Article 3 may exercise the right of compensation by subrogation of the victim within the limit of the amount of compensation. ② Article 481 of the Civil Act provides that a person who has a legitimate interest in payment shall exercise the right of compensation by subrogation of the obligee; ③ Article 682 of the Commercial Act provides that in case where the damage was caused by a third party’s act, the insurer who has paid the insurance amount shall acquire the right of the policyholder or the insured against the third party within the limit of the amount of compensation paid. Accordingly, the plaintiff who has paid the damage of the victims caused by the accident of this case in accordance with the Guarantee Project may exercise the right

(2) Details of the right of indemnity

① The victims of the instant accident may claim damages from the Defendant Company, the owner of the instant truck, and Defendant 3 who operated the instant truck at the time of the instant accident. As such, the Plaintiff may exercise the right to claim damages by subrogation of the victims within the limit of the amount of compensation, and ② Article 9(1) of the Act provides that the victims of the instant accident may claim directly the insurer, etc. to pay the insurance money, etc. to the insurer, etc. pursuant to Article 724(2) of the Commercial Act. Thus, the victims of the instant accident may claim directly to pay the insurance money to the Defendant Samsung Fire, the insurer, etc. of the Defendant Company, pursuant to Article 9(1) of the Act and Article 724(2) of the Commercial Act. The Plaintiff may exercise the right to claim directly against the Defendant Samsung Fire.

C. Whether a claim for return of unjust enrichment exists

(1) Summary of the assertion

① The Plaintiff paid insurance amount of KRW 69.3 million to the victims of the instant accident, thereby releasing the Defendant from liability for damages equivalent to the same amount of the damages, and accrued profits without any legal cause. The Plaintiff sustained damages equivalent to the same amount, and the Defendants are obligated to return the amount of the above insurance money to the Plaintiff. ② Article 745 of the Civil Act provides that in the event that a person, other than the obligor, has discharged another’s obligation due to mistake, the obligee is in good faith, and the obligee has in defaulted his claim due to the damage of the instrument, waiver of the security, or the prescription, the obligee may not demand the return thereof, and the obligee may exercise the right to demand reimbursement against the obligor. The instant accident is not the case where Nonparty 1’s bereaved family members were recognized as liability for damages to the Defendant Company by the final judgment of the lawsuit filed against the Defendant Company, and the instant accident is not the case where a person, other than the policyholder, etc., under Article 26(1)2 of the Inheritance Act, and eventually, the Plaintiff paid compensation to the victims due to the damage claim against the Defendants, which had already expired.

(2) Determination

(A) As to the above (1) argument

The Plaintiff’s compensation for damages to the victims under Article 26(1)2 of the Act is a performance of the duty to pay insurance money to the victims in accordance with the guarantee business, and it is not an act without any legal ground, and the Plaintiff compensated the victims for damages. The Defendants’ compensation liability is not extinguished, and the victims’ compensation liability is merely transferred to the Plaintiff according to each subrogation provision as seen earlier, and thus, it cannot be said that the Defendants obtained any benefit therefrom. Therefore, the Plaintiff’s assertion of unjust enrichment under Article 741 of the Civil Act

(B) As to the above (2) argument

As seen earlier, as long as the Plaintiff recognized the obligation to compensate for losses equivalent to the amount of the insurance proceeds for the victims as the obligation to compensate for damages arising from the assistance business under Article 26(1)2 of the Act, this is merely a performance of the obligation to pay the insurance proceeds, and even if it was confirmed by the final judgment, etc. that the exemption of the Defendant Samsung F&M, which is an insurer, was not recognized by the final judgment, it cannot be deemed that it was paid by mistake. Therefore, the Plaintiff’s assertion of unjust enrichment or the right to indemnity under Article 74

D. Sub-determination

Therefore, the Defendants are obliged to pay the Plaintiff the amount of indemnity equivalent to the above insurance money paid to the victim or his/her bereaved family members who exercise the victims’ damage claim in subrogation in accordance with each subrogation provision recognized in the above B.

3. Determination as to the defendants' defense of extinctive prescription

A. The plaintiff's claim for reimbursement

The Plaintiff’s claim for indemnity against the Defendants is exercised by subrogation of the rights of the victims against the Defendants. As such, the period and the starting point of the statute of limitations of the claim for indemnity against the Defendants should be determined based on the damage claim or insurance claim that the victims have against the Defendants.

(b) Extinctive prescription period;

① Therefore, the Plaintiff’s claim for indemnity against Defendant Samsung Fire is subrogated to the victims’ direct claim under Article 9 of the Act on the Aggravated Punishment of Samsung Fire or Article 724(2) of the Commercial Act. As such, the extinctive prescription period for the right to indemnity acquired under Article 9 of the Aggravated Punishment Act is two years after the victims’ direct claim under Article 33 of the Aggravated Punishment Act, and the extinctive prescription period for the right to indemnity acquired under Article 724(2) of the Commercial Act is three years after the victims’ or their legal representatives become aware of the damages and the perpetrator pursuant to Article 766(1) of the Civil Act. ② The Plaintiff’s claim against Defendant Samsung Fire and its legal representative is acting in subrogation of the victims’ right to indemnity under Article 3 of the Aggravated Punishment Act against Defendant Samsung Fire and Defendant 3. The extinctive prescription period is three years after the victims or their legal representatives become aware of the damages and the perpetrator.

(c) Commencement and completion of extinctive prescription;

(1) Determination of the Plaintiff’s assertion that the time when the judgment of damages became final and conclusive is the starting point

(A) Summary of the argument

① The Plaintiff recognized the obligation to pay insurance money to the Plaintiff under the security business with no confirmation of exemption from liability for the Defendant Samsung Fire, which is an insurance company, based on the purpose of legislation of the law on the distribution of the victim's automobile accident caused by automobile accident, such as the non-subscriber of mandatory insurance, and the automobile insurance policy aimed at prompt relief of the victim. The Plaintiff's right to indemnity against Defendant Samsung Fire is not immediately acknowledged pursuant to Article 31 (1) of the Act, but it is acknowledged that the Plaintiff is liable for compensation of Defendant Samsung Fire, an insurance company after the Plaintiff paid compensation, mutatis mutandis application of Article 31 (1) of the Act. As such, the statute of limitations is acknowledged in a case where it is found that the Plaintiff had liability for compensation for the Defendant Samsung Fire, which is an insurance company, after the Plaintiff paid compensation, at least since the date after the judgment of the first instance court became final and conclusive at least on December 17, 2004 at the time of the occurrence of damage liability for the Defendant Samsung Fire Fire, etc., the period of extinctive prescription should also be applied to the Defendants's claim for exemption from liability for damages or damages damages.

(B) Determination

1) As to the above (1) argument

As long as the Plaintiff paid the victims of the instant accident with compensation equivalent to the indemnity insurance money for the guaranteed business, it can be exercised by subrogation of the victims’ rights. It can not be deemed that the Defendant company’s liability for damages and the obligation to pay the Defendant Samsung Fire should be confirmed (if the Plaintiff’s claim is asserted, it would result in the conclusion that the Defendants’ liability does not run until the lapse of the extinctive prescription, as long as the Plaintiff or victims did not file a lawsuit for damages and the Defendants’ liability is not confirmed). Since the Plaintiff did not pay the insurance money to the victims as one insurer of the joint tortfeasor, the period of extinctive prescription between the joint tortfeasors cannot be applied. Therefore, the Plaintiff’s above assertion is without merit.

2) As to the above ② argument

A) Where there are circumstances under which the claimant could not know the occurrence of the insurance accident without fault because it is objectively unclear whether the insurance accident occurred, the extinctive prescription of the right to claim insurance proceeds from the time when the insurance accident occurred or could have occurred. However, barring such special circumstances, the extinctive prescription of the right to claim insurance proceeds from the time when

B) However, it cannot be deemed that there was a legal disability in exercising the right to claim damages or the right to claim damages, or that the claimant’s insurance accident occurred. Therefore, it is reasonable to view that the claim for the insurance money or the right to claim for damages against the Defendant Company ought to run extinctive prescription from the time the accident occurred (see Supreme Court Decision 97Da36521, Nov. 11, 1997).

(2) Expiration of the statute of limitations

As seen earlier, the Plaintiff’s claim for damages or insurance money against the victims of the instant accident or their bereaved family members is exercised by subrogation in accordance with each subrogation provision, and the Plaintiff’s claim against the Defendants is three years after the victims or their bereaved family members become aware of the damages and the perpetrator’s identity. The Plaintiff’s claim against the Defendants is three years after the lapse of three years from May 7, 200, which is the date of the occurrence of the instant accident, which is the starting point of prescription. Thus, the Plaintiff’s claim for indemnity against the Defendants was extinguished by the statute of limitations.

D. Judgment on the plaintiff's second defense

(1) The good faith principle or the second defense of abuse of rights

(A) Summary of the argument

The Defendant Company’s accident was based on Defendant 3’s unauthorized driving, and the Defendant Company rejected compensation for damages to the victims by asserting that the instant accident was not liable for damages since it lost its operating control and operating profit at the time of the instant cargo vehicle, and Defendant Samsung Fire also rejected payment of insurance money on the same ground as the victims’ claim for insurance money, and the assertion that the extinctive prescription of the right to indemnity has expired constitutes abuse of rights contrary to the good faith principle.

(B) The exercise of the obligor’s right of defense based on the statute of limitations is governed by the principle of good faith and the prohibition of abuse of rights, which are the major principles of our civil law. Thus, where there are special circumstances, such as the obligor’s exercise of the obligee’s right or the interruption of prescription prior to the completion of the statute of limitations, the obligor’s act of making it impossible or considerably difficult for the obligee to exercise the obligee’s right or the interruption of prescription, the obligee’s act was committed to believe that such measures are unnecessary, the obligee was objectively obstructed, or the obligor’s act was not able to exercise the right after the completion of the statute of limitations, or there was a great need to protect the obligee, and there is a great need to protect the obligee, and where there are other creditors under the same conditions receive the repayment of the obligation, the obligor’s assertion for the completion of the statute of limitations is not permissible as abuse of rights against the principle of good faith (see Supreme Court Decision 2002Da323

However, solely on the ground that Defendant Samsung Fire and Defendant Company asserted the above exemption, it cannot be deemed that there was a situation where it was impossible or significantly difficult for the Plaintiff to take measures to prevent extinctive prescription, such as exercising the Plaintiff’s right or demanding performance with respect to the instant claim, or there was an obstacle to objectively exercising the right. Moreover, there is no reason to deem that the Defendants’ assertion on the completion of extinctive prescription constitutes an abuse of right, and thus,

(2) Re-claiming the waiver of the prescription benefit

Although Defendant Samsung Fire alleged that it renounced the benefit of extinctive prescription by expressing its intent to pay the instant claim amount to the Plaintiff on November 3, 2005, the Plaintiff’s re-appeal is without merit, inasmuch as there is no evidence to acknowledge this.

4. Conclusion

Therefore, the plaintiff's claim of this case shall be dismissed because all of the claims of this case are without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as all of the grounds for appeal.

Judges Kim Chang-sung (Presiding Judge)