Whether a driver or an assistant who does not participate in the actual operation at the time of the accident constitutes "other person" under Article 3 of the Guarantee of Automobile Accident Compensation Act (affirmative)

The term "other person" referred to in Article 3 of the Guarantee of Automobile Accident Compensation Act refers to a person who operates an automobile for his own sake and a person other than the driver of the automobile in question. Thus, a person who actually drives the automobile in question or has engaged in assisting the driver in the operation of the automobile in question does not fall under another person as provided in Article 3 of the same Act. However, even if the driver or the driver of the automobile in question did not participate in the automobile in reality at the time of the accident, such person is protected as another person as provided in

Article 3 of the Guarantee of Automobile Accident Compensation Act

Supreme Court Decision 82Da128 delivered on February 22, 1983 (Gong1983, 586) Supreme Court Decision 89Meu2070 Delivered on April 24, 1989 (Gong1993Sang, 1455) Supreme Court Decision 97Da28971 Delivered on November 28, 197 (Gong1998Sang, 70)

Samsung Fire Insurance Co., Ltd. (Attorney Kim Tae-tae, Counsel for defendant-appellee)

Defendant

Busan High Court Decision 98Na12294 delivered on March 25, 1999

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. As to the ground of appeal on whether the victim is a third party under Article 3 of the Guarantee of Automobile Accident Compensation Act

The term "other person" under Article 3 of the Guarantee of Automobile Accident Compensation Act (hereinafter referred to as the "Act") refers to a person who operates a motor vehicle for his own sake and a person other than the driver of the motor vehicle in question except for the driver of the motor vehicle in question, so a person who actually drives the motor vehicle in question or has engaged in assisting the driver in the motor vehicle in question does not fall under another person under Article 3 of the Act. However, if the driver or the driver of the motor vehicle in question was not involved in the motor vehicle in reality at the time of the accident, such person shall be protected as another person

According to the reasoning of the judgment below, the court below acknowledged the fact that the victim non-party 1 was employed as a assistant engineer for the soft machine of this case on December 18, 197, and was engaged mainly in the maintenance of the soft machine, such as exchanging the softet or boomer of the soft machine and injecting the lease oil, etc., on December 25, 1997, when the non-party 1 was engaged mainly in the maintenance of the soft machine, such as exchanging the soft ticket or bucker of the soft machine and injecting the boomer, etc., on December 25, 1997, the non-party 1 did not assist the non-party 1's operation of the soft machine on the ground that the non-party 1 was non-party 1, who was driven by Non-party 2 at the subway Corporation located in the Nam-gu, Busan Metropolitan City on December 25, 1997.

The court below determined that the non-party 1 was merely a person employed as an assistant engineer of the excavation machines of this case, and did not participate in the operation of the excavation machines for himself at the time of the accident of this case, and even though he did not actually participate in the operation of the motor vehicle, under the premise that he is one of the joint operators with operation control and operation profit with respect to the excavation machines of this case, the non-party 1 was more led than that of the non-party 1, and thus, he can assert that the non-party 1 is a person under Article 3 of the Act against the defendant. However, the court below's conclusion that the non-party 1 is a third party protected by Article 3 of the Act is just, and therefore, the judgment below did not err by misapprehending the legal principles of other persons under Article 3 of the Act, which affected the conclusion of the judgment. The grounds for appeal on this point

2. As to the grounds of appeal on the exemption clause

Article 11 (2) 5 of the General Clause of the Business Automobile Insurance Act provides that "the case where the insured was an employee who is engaged in the business of the employer using the insured automobile as an employee's business, but such employee was entitled to accident compensation under the Industrial Accident Compensation Insurance Act" as one of the reasons for exemption of the insurer's liability. However, if the insurer is exempted from liability in accordance with the above standardized contract, the insurer who asserts the exemption must prove that the victim is a person entitled to accident compensation under the Industrial Accident Compensation Insurance Act, and even if examining the record, there is no evidence suggesting that the victim is a person entitled to accident compensation under the Industrial Accident Compensation Insurance Act, so the above standardized contract does not apply to the accident of this case.

Therefore, the court below's dismissal of the plaintiff's claim of this case seeking confirmation of the existence of an obligation to pay insurance money under the insurance contract of this case is justified in conclusion, and there is no error of law by misunderstanding the legal principles under Article 11 (2) 5 of the above terms and conditions. The ground of appeal on this point cannot be accepted.

3. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the plaintiff-Appellant. It is so decided as per Disposition by the assent of all Justices who reviewed the appeal.

Justices Jeong Jong-ho (Presiding Justice)