[1] The scope of the victim's exercise of direct right of action against the insurer under Article 9 (1) of the Guarantee of Automobile Accident Compensation Act

[2] The legal nature of the victim's direct right to claim for the insurer under Article 724 (2) of the Commercial Code (=joint acceptance of damage liability) and the period of extinctive prescription

[3] Whether the statute of limitations under Article 33 of the Guarantee of Automobile Accident Compensation Act, which applies to Article 9 of the same Act, applies to claims for damages under Article 724 (2) of the Commercial Act (negative)

[1] Article 9(1) of the Guarantee of Automobile Accident Compensation Act provides that where liability for damages under Article 3 of the same Act occurs to the "insured, etc.", the victim may claim the insurer, etc. to pay the insurance money, etc. directly to the insurer, etc., and Article 8 of the same Act defines the insurer, etc. and the pertinent compulsory insurance contract as the "insured, etc.," so the victim's direct right to claim against the insurer, etc. under Article 9(1) of the same Act is limited to the scope of compulsory insurance money enforced under Article 5(1) of the same Act in cases where liability for damages occurs to the insured of compulsory insurance.

[2] Under Article 724(2) of the Commercial Code, the direct right of the victim to the insurer is extinguished by prescription, unless the victim or his legal representative exercises such right for three years from the date when he becomes aware of the damage and the identity of the perpetrator, since the insurer concurrently takes over the obligation of the insured to compensate for the damage against the insurer, and the victim has a right of compensation against the insurer.

[3] In a case where the insured of the comprehensive motor vehicle insurance (including personal compensation I and II) is liable for damages due to an accident of a motor vehicle, the victim's right to claim damages that can be exercised against the insurer under Article 724(2) of the Commercial Act differs from the right to claim damages that can be exercised under Article 9 of the Guarantee of Automobile Accident Compensation Act, so the two rights are separate claims, and thus, the extinctive prescription provision of Article 33 of the Guarantee of Automobile Accident Compensation Act, which applies to Article 9 of the Guarantee of Automobile Accident Compensation Act, cannot be applied to the claim for damages under Article 724(2)

[1] Articles 5(1), 8, and 9(1) of the Guarantee of Automobile Accident Compensation Act / [2] Article 724(2) of the Commercial Act, Article 766(1) of the Civil Act / [3] Article 724(2) of the Commercial Act, Articles 9 and 33 of the Guarantee of Automobile Accident Compensation Act

[2] Supreme Court Decision 94Da6819 delivered on May 27, 1994 (Gong1994Ha, 1824), Supreme Court Decision 94Da52911 delivered on July 25, 1995 (Gong1995Ha, 2940), Supreme Court Decision 98Da44956 delivered on February 12, 199 (Gong199Sang, 527), Supreme Court Decision 98Da54397 delivered on June 9, 200 (Gong200Ha, 1603)

Plaintiff 1 and four others (Law Firm Dump, Attorney Lee Jin-jin, Counsel for the plaintiff-appellant)

Han Fire Marine Insurance Co., Ltd. (Attorney Kim Du-du, Counsel for defendant-appellant)

Seoul High Court Decision 2001Na55729 delivered on December 26, 2002

The judgment below is reversed, and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. Article 9(1) of the Guarantee of Automobile Accident Compensation Act (the Act amended by Act No. 5793, Feb. 5, 1999 and enforced July 1, 199) provides that in the event of liability for damages under Article 3 to the "insured, etc., the victim may claim directly to the insurer, etc. for payment of the insurance money, etc. to the insurer, etc., and Article 8 of the same Act defines the insurer, etc. as the "insured, etc.," and accordingly, the victim's direct right to claim against the insurer, etc. under Article 9(1) of the same Act is limited to the scope of the compulsory (liability) insurance amount enforced under Article 5(1) of the same Act in the event the liability for damages occurred to the insured of the automobile accident compensation insurance. Accordingly, the provision on the extinctive prescription of Article 33 of the same Act is applicable to the above scope of the insurance money under Article 9(1) of the same Act, other than compulsory insurance money (liability insurance money).

2. We examine more fundamental issues.

Article 724(2) of the Commercial Act provides that the third party, the injured party, may directly claim the insurer for the damage caused by an accident attributable to the insured in liability insurance, within the limit of the insured amount. Under Article 724(2) of the Commercial Act, the insurer has the right to claim compensation against the insurer because the insurer concurrently takes over the obligation of the insured to compensate the damage against the insured, and the victim has the right to claim compensation against the insurer. Therefore, if the injured party or his/her legal representative fails to exercise it for three years from the date he/she becomes aware of the damage and the identity of the perpetrator, it shall be extinguished by prescription.

In a case where the insured of the comprehensive motor vehicle accident insurance (including personal compensation I and II) is liable for damages due to the accident of the motor vehicle, the victim's right to claim damages against the insurer under Article 724(2) of the Commercial Act differs from the right to claim damages and its scope that can be exercised under Article 9 of the Guarantee of Automobile Accident Compensation Act. Thus, the two rights are separate claims, so the extinctive prescription provision of Article 33 of the Guarantee of Automobile Accident Compensation Act applicable to Article 9 of the Guarantee of Automobile Accident Compensation Act cannot be applied to the claim for damages under Article 724(2) of the Commercial Act.

According to the records, it is evident that the plaintiffs are claiming damages of this case against the defendant, who is the insurer of the comprehensive automobile insurance that the principal owner subscribed to under Article 724 (2) of the Commercial Act. Thus, the court below erred by misapprehending the legal principles on the relationship between the direct claim under Article 724 (2) of the Commercial Act and the direct claim under Article 9 of the Guarantee of Automobile Accident Compensation Act, by applying Article 33 of the Guarantee of Automobile Accident Compensation Act to the plaintiffs' claims of this case.

3. Conclusion

Therefore, the judgment of the court below is clearly erroneous due to the above misunderstanding of legal principles. The ground of appeal pointing this out is with merit, and the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Hong-hoon (Presiding Justice)