[1] Whether the legal principle of Article 672(1) of the Commercial Act concerning double insurance applies to a case where an insurance with a special contract for coverage by multiple non-insurance vehicles is concluded and the total amount of the insured amount exceeds the amount of the insured amount (affirmative)

[2] The meaning of "amount of damage" which serves as the basis for determining whether an insurance with a special contract for coverage by multiple non-insurance vehicles entered into in a single accident constitutes double insurance (=amount calculated according to the standard for payment of insurance money stipulated in the standardized contract)

[1] Article 672 (1) of the Commercial Act / [2] Article 672 (1) of the Commercial Act

[1] Supreme Court Decision 2005Da35516 Decided November 10, 2006 (Gong2006Ha, 2068) Supreme Court Decision 2006Da10989 Decided November 23, 2006

Plaintiff

Dongbu Fire Marine Insurance Co., Ltd. (Law Firm Vindication, Attorney Jeon Jae-in, Counsel for plaintiff-appellant)

Busan High Court Decision 2005Na10920 decided March 30, 2006

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

The grounds of appeal are examined.

1. As to the grounds of appeal Nos. 1 through 3

When several non-life insurance contracts with respect to a single accident (hereinafter “non-life insurance special agreement”) are concluded and the total amount of the insured amount exceeds the amount of the insured amount, the insurer shall be jointly and severally liable within the scope of each insured amount and the insured shall not be subject to duplicate claims for insurance under each insurance contract (see Supreme Court Decisions 2005Da35516, Nov. 10, 2006; 2006Da10989, Nov. 23, 2006).

In addition, in the event that an insurance contract has been concluded between the parties based on the insurance terms and conditions, the insurance terms and conditions are agreed to be included in the insurance terms and conditions and have binding force on the parties to the contract. Examining the provisions of the personal automobile insurance contract which was applied at the time of the instant case, the amount liable for payment due to an accident by an insured vehicle shall not exceed 20 million won per person of the insured (Article 48(1)), and the insurance amount paid by the defendant shall be the sum of the necessary expenses and the amount obtained by deducting the prescribed amount from the payment standards (Article 48(2)). Meanwhile, in the case of a personal compensation Type 2, the above insurance amount shall be calculated based on the amount calculated according to the payment standards of insurance money of these terms and conditions. Article 16(1) of the Civil Automobile Insurance Terms and Conditions 200 million won per person (Article 48(1) of the attached Table 1 of this Decree. 300 million won per person, and the above provision of the insurance amount shall be divided into 160.3 billion won per person (including damages). 97. 20.3 billion won per person).

Therefore, in the case of an non-life insurance contract, “amount of damage” as a basis for determining whether it constitutes double insurance means not “amount calculated according to the standard for payment of insurance money as stipulated in the terms and conditions,” not “amount of actual loss of the insured.”

Examining the amount of damages suffered by the Plaintiff, who is the insured in this case, in accordance with these legal principles, the lower court recognized the amount of compensation to be paid by the Defendant to the Plaintiff based on the individual insurance contract of this case after deducting KRW 95 million from the amount of liability insurance in total of KRW 254,014,09,000,000,000,000 for the total amount of lost income and other losses, which is KRW 159,014,000,000,000,000 as the amount of compensation liability to be paid by the Plaintiff. Accordingly, since this is less than KRW 200,000,000 for each

Nevertheless, the court below held that since the plaintiff separately paid the insurance premium for each non-life insurance contract of this case, the defendant should pay each insurance premium calculated by the individual insurance contract to the plaintiff. It is erroneous in the misapprehension of legal principles as to double insurance, or in the misunderstanding of the concept of damages in non-life insurance, which affected the conclusion of the judgment. The ground of appeal pointing this out has merit.

2. As to the fourth ground for appeal

Examining the reasoning of the judgment below in comparison with the records, since claims for the payment of liability insurance money under the Guarantee of Automobile Accident Compensation Act are included in the causes of claims of the plaintiff as stated in the written complaint of this case, the extinctive prescription has not been completed, and even if not, the judgment of the court below which rejected the defense of extinctive prescription by deeming that the defendant's assertion based on the legal brief in this case acknowledged the above liability insurance money as constituting the waiver of the benefit of extinctive prescription is justifiable, and there is no error in the misapprehension of legal principles as to the completion of the extinctive prescription

3. Conclusion

Therefore, 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 Kim Young-ran (Presiding Justice)