Plaintiff 1 and one other (Law Firm Man-ro, Attorneys Yang Chang-won, Counsel for the plaintiff-appellant)

State Fire and Marine Insurance Co., Ltd. (Law Firm just Law, Attorney Park Ba-hee, Counsel for the plaintiff-appellant)

March 3, 2016

Seoul Central District Court Decision 2014Da5193615 Decided January 30, 2015

1. Of the judgment of the court of first instance, the part against the plaintiffs falling under the following order of payment shall be revoked.

The defendant shall pay to the plaintiffs 47,576,854 won and each of the above amounts with 5% interest per annum from May 30, 2014 to March 17, 2016, and 20% interest per annum from the next day to the day of full payment.

2. The plaintiffs' remaining appeals are dismissed.

3. 3/10 of the total costs of litigation shall be borne by the Plaintiffs, and the remainder by the Defendant, respectively.

4. The portion of payment of the amount under paragraph (1) may be provisionally executed.

The judgment of the first instance shall be revoked. The defendant shall pay to the plaintiffs 67,601,610 won and each of the above amounts with 5% interest per annum from May 30, 2014 to the date the judgment of the first instance is rendered, and 20% interest per annum from the next day to the date of full payment.

1. Facts of recognition;

A. The Plaintiffs are the parents of Nonparty 1 (the Nonparty: hereinafter “the deceased”), who died due to the following accidents, and the Defendant is the insurer who concluded a comprehensive automobile insurance contract with respect to the Plaintiff 1’s (vehicle number omitted) automobile (hereinafter “instant automobile”).

B. On December 28, 2013, Plaintiff 1 and the Defendant entered into a comprehensive automobile insurance contract (hereinafter “instant insurance contract”) with respect to the instant automobile by determining the insurance coverage amount as Plaintiff 1, the insurance coverage period from January 20, 2014 to January 20, 2015, i.e., personal compensation I, II, physical compensation, and self-physical accidents (the insurance coverage amount as KRW 30 million in the event of death or aftermath disability, KRW 15 million in the event of injury). The main contents of the instant insurance contract (hereinafter “instant insurance contract”) are as follows.

Section 1 of Chapter 1 of Part II of the Table, which is covered by the Automobile Insurance Act, is Section 1 of Part I (Compensation for Loss): Provided, That the Insurance Company shall compensate for the loss caused by the insured's death or injury to another person due to the operation of the insured motor vehicle under Article 3 of the Guarantee of Automobile Accident Compensation Act. The Insurance Company shall pay the amount of the insurance money to the extent of the insured's accident under Section 1 of Section 1 of the Table, except for the liability for damages, as the result of the insured's possession, use, and management of the insured motor vehicle under Article 12 of the Guarantee of Automobile Accident Act, to the extent of the amount of the insurance money to be covered by any of the following accidents:

C. Around 10:00 on May 19, 2014, Plaintiff 1 laid the Deceased on the back seat of the instant vehicle and went to a child care center (name 1 omitted) located in the Hongcheon-gun (name 1 omitted) Hongcheon-gun (name 1 omitted) working at the deceased’s workplace, and the deceased died due to the cardiopulmonary suspension (name 2 omitted) due to the brain death of the deceased at around 03:50 on May 30, 2014 (title 3 omitted).

D. From March 2014, before the instant accident, the deceased worked as a nursery teacher of the (title 1 omitted) childcare center from March 2014 to the date of the instant accident, but sent a text message to the effect that he would resign from the cell phone of the head of the (title 1 omitted) childcare center at around 08:49 on the day of the instant accident while he was under the psychological stress in the said childcare center due to his passive and resistant nature, and then (title 4 omitted) the plaintiffs did not speak of this fact, and (title 4 omitted) the plaintiff 1 had a contact with the deceased that he did not work at the (title 1 omitted) childcare center from the person related to the day of the instant accident, and (title 4 omitted) the deceased was able to obtain the telephone contact with the deceased, and then the accident of this case occurred while he was operated as a childcare center in the (title 1 omitted) childcare center.

[Reasons for Recognition] The facts without dispute, Gap evidence Nos. 1, 2, 4, 5 (including each number), Eul evidence Nos. 1, 2, and 4, and the purport of the whole pleadings

2. Determination on the claim for liability insurance proceeds

(a) Occurrence of liability for damages;

(1) Recognition of liability

According to the above facts, the deceased died due to the operation of the instant vehicle, barring special circumstances, the defendant, the inheritor of the deceased, is obligated to pay the damages suffered by the deceased due to the instant accident to the plaintiffs, who are the inheritor of the deceased, within the limit of the limit of the maximum amount of personal compensation I (liability Insurance), as stipulated by the Guarantee of Automobile Accident Compensation Act (hereinafter only referred to as the "Act"), (the defendant is not a "other person" under Article 3 of the Act as co-operator of the instant vehicle, since the deceased was on board and returned to the instant vehicle operated by the plaintiff 1 every time he left (title 1 omitted) child care center. However, the deceased's co-operator of the instant vehicle was not a "other person" under Article 3 of the Act, merely because he was on board the instant vehicle as a family member of the plaintiff 1, who is the operator of the instant vehicle, and thus, it cannot be deemed a co-operator who shares

(2) Judgment on the defendant's defense of immunity

(A) Summary of the defendant's defense

It is reasonable to deem that there was an intentional death on the deceased, who was up to fifty kilometers per hour on the instant vehicle, and even though there was a mental illness on the deceased, it is difficult to view that it reached the degree that free decision-making could not be made because it was considerably favorable, and therefore, the Defendant is exempted from the duty to pay the insurance money in respect of the instant accident caused by the deceased’s intentional act pursuant to Article 3 subparag. 2 proviso of the Act and Article 14 of the Terms and Conditions of this case.

(B) Determination

1) The main text of Article 3 and Article 3 (2) of the Act on the part of the company and the proviso 2 of the same Article provide that "if a person who operates an automobile for his own sake has killed or injured another person due to his operation, he shall be liable for the damage, but this shall not apply to the case where a passenger has killed or injured another person due to his intentional act or suicide." As seen above, Article 14 of the Terms and Conditions of this case provides that "if the insured person intentionally sustained an injury, he shall not compensate for the injury caused by the insured person's bodily accident." The term "suspect" in this case refers to the psychological condition where the insured person performs it with the knowledge that a certain result would occur by his own act, and it includes a conclusive intentional act as well as dolusent intentional act (see, e.g., Supreme Court Decision 200Da67020, Mar. 9, 201). However, in order to constitute "damage caused by an intentional act of the insured person," the insured shall be deemed as a loss caused by his intentional act (see, etc.

Meanwhile, Article 14 of the Terms and Conditions of this case shall be strictly interpreted as a principle. Since there is a qualitative difference between injury and death or serious injury corresponding to death, and there is a big difference in the scope of liability for damages, it is reasonable to consider that the terms and conditions of exemption are treated as an insurance accident directly caused by the death or other serious result beyond an ordinarily foreseeable scope and thus, it is not applied to the case where the death or other serious result occurs, unless the policyholder or the insured (hereinafter “contractor, etc.”) is a general perception of the policyholder, etc., and the policyholder, etc. actively expresses or expresses the result of the death, etc., it is not likely to cause artificial accidents even if it is not applied to the social security function of the insurance. Rather, in light of the circumstance and before and after the accident caused by the operation of a motor vehicle, in light of the circumstance of the accident and the situation, etc., if it cannot be deemed that the result of the death or other serious result is recognizable and used, it is reasonable to view that the aforementioned legal principle does not differ from the above proviso to Article 2161 of the Act.

2) Comprehensively taking account of the aforementioned evidence, Gap evidence Nos. 6 and Gap evidence Nos. 16 (including each number), and the purport of the entire pleadings, the deceased complained of symptoms such as exchange office, depression, and mental fission, etc. on June 19, 2007 (title 5 omitted) and discharged on July 16, 207 after being hospitalized in the hospital. After (title 6 omitted), the deceased was diagnosed by Matern Subdivision and was diagnosed by the above Council members on Nov. 29, 2008 to 87 occasions from Apr. 26, 2014, the deceased did not display the meeting of this case at the time of this case to 10k, and the deceased did not display the name of the child care center at the time of this case to 20k, and the deceased was released from the name of the child care center at the time of this case to 30m of the accident, on the day of this case’s non-party 2, 2013.

According to the above facts, the deceased was in a state where the existing mental disease was not completely cured at the time of the accident, and it seems that the deceased had considerable psychological anxiety due to the mental and psychological condition of the deceased, the circumstance of the accident at the time of the accident, the present condition of the road at the time of the accident, and the vehicle operation behavior of this case, etc., in full view of the above facts: (a) the deceased's mental and psychological condition, the situation of the accident at the time of the accident at the accident at the time of the accident at issue; and (b) there is room to view that the deceased was a serious injury; (c) however, it is difficult to view that the deceased was aware of and admitted the result of the death; and (d) there is no other evidence to acknowledge it. Therefore, the defendant's defense based on the premise that the death of the deceased was the result of the

(3) Determination as to the deceased’s defense of negligence

(A) Summary of the defendant's defense

The accident of this case is caused by the total negligence of the deceased who was within his own influence on the instant vehicle, and thus there is no liability for damages to the defendant.

(B) Determination

According to the main text of Article 3 and subparagraph 2 of the same Article of the Act, in cases where a passenger is killed or injured due to an accident of a motor vehicle, the operator is liable to compensate for the damage caused by the driver's negligence unless the passenger proves that the death or injury of the passenger was caused by his/her intentional act or suicide. Therefore, the defendant's defense is without merit without need to further examine.

(4) Determination as to the defense of the extinction of the obligation caused by confusion

(A) Summary of the defendant's defense

Since the claim for damages by the deceased and the claim for damages by the plaintiff 1, the inheritor of the deceased, were extinguished by confusion, the defendant is not liable for damages within the limit of the share of inheritance by the plaintiff

(B) Determination

In a case where an operator of an automobile who caused a traffic accident and his/her relatives died and becomes liable to the same person by inheritance as a result of the death of the operator of the automobile or his/her relatives or both of his/her relatives during the operation of the automobile, the fact that there is social need to protect the victim of the surviving traffic accident or his/her heir by giving benefit from the liability insurance unless the perpetrator becomes the heir of the victim, etc., is different from other traffic accidents. On the other hand, the insurer of the liability insurance for automobile damages is not only a third party unrelated to the merger of the obligation by inheritance, but also a third party who is already receiving the insurance premium, and there is no reasonable reason to be exempted from his/her liability for damages due to inheritance between the victim of the traffic accident and the victim of the vehicle accident, and if the victim of the liability insurance is accompanied by the so-called direct claim that the victim may directly claim the payment of the insurance money pursuant to the terms and conditions of the liability insurance, it is not possible to see the Supreme Court Decision 200Da163160 Decided, 2060.

The deceased was on board the instant vehicle operated by the plaintiff 1, while the deceased was on board the instant vehicle. However, according to the facts acknowledged earlier, it is difficult to say that there was an automobile operation negligence caused by the instant accident to the plaintiff 1, and therefore, the plaintiff 1 cannot be deemed as the perpetrator of the instant accident. Therefore, the defendant's defense based on the premise that the plaintiff 1 is the perpetrator is not reasonable.

B. Scope of liability for damages

In principle, the period of the calculation shall be calculated on a monthly basis, but less than the last month and less than won shall be discarded. The current price calculation at the time of the accident of the amount of damages shall be governed by the simple interest rate that deducts the interim interest at the rate of 5/12.

(1) Actual income

(A) Personal information

Women's date of birth (date of birth omitted): 32 years old and 18 months old: 53.69 years old.

(b) occupation and income;

As seen earlier, the Deceased has been working as a nursery teacher from March 2013 to the date of the instant accident. As such, in the report on the fact-finding survey on work by employment type, the statistical income of those with career experience of not less than one year but less than three years is recognized as the Plaintiff’s income.

○ From May 19, 2014 to May 31, 2014:

1,945,666 won (=1,809,000 won + 1,640,000 won ±12 months)

○ From June 1, 2014 to January 31, 2042, the expiration date of the operation period:

1,919,166 won (=1,81,00 won + 1,298,000 won ±12 months)

(c) Cost of living: 1/3 of income;

(d) Calculation: 266,33,860 won (the detailed statements are as follows):

The sum of the monthly income cost of 1 f1 m2 m1-2 m1-2 m1-2 m1-2 m1-2 m1-5-19 m1,958 0.958 0.958 1,291,62,62 62-62-62-1 204-1-31, 919, 163.33 33% of the monthly income cost of living for the period of 2014-5 m1,94-5 20.958 0.958 1, 291, 62-62-1, 2042-1-1, 2042-1-31, 919, 33.33% of the total amount of monthly income for the period of 150 m2 m12 m2 m2 m2 m1-5 m2 m2 m363

(b) Expenses for treatment: 5,203,220 won;

(c) Funeral expenses: 3,00,000 won (it shall be deemed that the plaintiff paid each one thousand five hundred won)

(4) Limit of liability: On the other hand, the Defendant’s liability is limited to 10% of the total amount of damages for the fair apportionment of damages, taking into account all the following factors: (a) the Plaintiff’s liability is limited to 10% of the total amount of damages, without expressing his intention of refusal; and (b) the Plaintiff’s and the Deceased’s relationship on board the instant motor vehicle by opening a

[Reasons for Recognition] Unsatisfy, Gap evidence Nos. 1, 5, 14, 15 (including each number), the purport of the whole pleadings

(5) Consolation money

In light of the circumstances revealed in the arguments in the instant case, such as the background of the instant accident, degree of violation of the deceased’s duty of care, and age of the deceased, KRW 25,00,000 shall be recognized as consolation money, and KRW 5,00,000 shall be recognized as consolation money, respectively.

(6) Inheritance relations

The Plaintiffs inherited 52,153,708 won in total of the deceased’s property right to claim damages and consolation money [27,153,708 won in property damages = 271,537,08 won in total of lost income and treatment expenses x 10% in Defendant’s liability ratio] + 25,000,000 won in total and damages for delay respectively.

(7) Total amount of liability insurance

Liability insurance money for the Plaintiffs respectively [32,576,854 won = Inheritance Amount of 26,076,854 won = Inheritance Amount of 52,153,708 won ¡¿ Inheritance Shares of 1/2) + Funeral expenses of 1,50,000 won + 5,000,000 won for each of the Plaintiffs + 5,00,000 won for consolation money for each of the Plaintiffs];

3. Determination as to claims for insurance proceeds from personal and physical accidents

According to the facts acknowledged above, the deceased is the insured under the contract of this case as to his own physical accident, and died during treatment due to the operation of the automobile of this case. Thus, the defendant, the insurer, is liable to pay the insurance money for his own physical accident under the insurance contract of this case to the plaintiffs who are the inheritor of the deceased (the defendant's defense of exemption against this is without merit as seen in the above 2. A. (2)).

However, according to the provisions of Article 16 of the Clause of this case, the insurance proceeds of self-physical accidents of this case, which the defendant should pay to the defendant for the accident of this case, shall be the amount obtained by deducting the amount that the plaintiffs can receive by a third party other than the obligor, etc. from the actual amount of damages before applying comparative negligence offsetting and coverage limit. The plaintiffs' actual damages amount of 309,537,080 won due to the accident of this case (=26,33,860 won + medical expenses 5,203,200 + funeral expenses 3,000,000 + 35,000,000,000 won + 35,000,000,0000 won + 20,000,000,000,000,000,000,000 won, which were paid by the defendant under the health insurance contract with the plaintiff 2,00,000 won, 300,0000,000.

4. Conclusion

Therefore, the defendant is obligated to pay damages for delay calculated at the rate of 47,576,854 won each to the plaintiffs (i.e., 32,576,854 won each of the above insurance proceeds + 15,000,000 won each of the insurance proceeds from self-physical accidents) and each of the above money after the occurrence date of the accident. As for the plaintiff's death after May 30, 2014, as the plaintiffs sought, it is reasonable for the defendant to dispute the existence and scope of his/her obligation as to the above money from May 30, 2014 to March 17, 2016, and 20% per annum of 20% as stipulated in the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the next day to the day of full payment. Thus, the plaintiffs' claim is accepted within the above recognition scope, and the remaining claims are dismissed due to lack of grounds. The judgment of the court of first instance is unfair, and the remaining part of the judgment against the defendant is dismissed.

For the chief of the Si/Gun/Gu office of the judge