[1] Probative value of a recording tape under the Civil Procedure Act, and whether the authenticity of a recording tape, etc. can be recognized according to the overall intent of the pleading (affirmative)

[2] The meaning of the "person who operates an automobile for his own sake" under Article 3 of the Guarantee of Automobile Accident Compensation Act, and the specific operation that caused an accident, in case where there are special circumstances to deem that the person who leased the ownership on the register of an automobile lost the control of the operation and the profit from the operation of the automobile, whether the nominal lender is liable for the pertinent accident (negative)

[1] Article 202 of the Civil Procedure Act / [2] Article 3 of the Guarantee of Automobile Accident Compensation Act

[1] Supreme Court Decision 99Da12070 delivered on April 13, 1993 (Gong1993Sang, 1375), Supreme Court Decision 9Da1789 delivered on May 25, 199 (Gong199Ha, 1262) / [2] Supreme Court Decision 86Da556 delivered on December 23, 1986 (Gong1987, 228), Supreme Court Decision 94Da38212 delivered on January 12, 195 (Gong195Sang, 877)

Hyundai Marine Fire Insurance Co., Ltd. (Attorney Kim Jong-hwan, Counsel for the plaintiff-appellant)

Defendant (Attorney Kim Young-young, Counsel for defendant-appellant)

Seoul High Court Decision 2008Na75166, 75173 decided April 2, 2009

The appeal is dismissed. The costs of appeal are assessed against the Defendant (Counterclaim Plaintiff).

We examine the grounds of appeal.

1. Regarding ground of appeal No. 1

Under the Civil Procedure Act of Korea that adopts the principle of free evaluation of evidence, recording tapes or records recorded by a stenography on the grounds that they recorded conversations with the other party on the other party’s land cannot be readily concluded to be inadmissible. Whether such recording tapes or records are admissible shall belong to the discretion of the fact-finding court (see Supreme Court Decision 9Da1789 delivered on May 25, 199). Even in a case where a person who has obtained evidence regarding documentary evidence disputed as a site did not prove the establishment thereof in particular, even if the party did not prove the establishment thereof, the court may recognize its establishment by free evaluation of evidence, without resorting to other evidence, by taking into account the overall purport of oral proceedings (see Supreme Court Decision 92Da12070 delivered on April 13, 1993).

Therefore, it is justifiable for the court below to maintain the judgment of the court of first instance that the defendant is a spouse in a de facto marital relationship with the non-party 1, under the premise that the authenticity of the evidence No. 3 (Fact-finding) and each recording (Evidence No. 4 through No. 6) is recognized. The argument in the grounds of appeal on this part is without merit.

2. Regarding ground of appeal No. 2

According to the records, according to Article 2 (9) (d) of the insurance agreement of this case, if a registered insured person is liable for damages under the law of the registered insured person, the damages are compensated for. Meanwhile, the defendant asserted at the court below that the non-party 2, who is the registered insured person of the insurance agreement of this case, is not liable for damages under the Guarantee of Automobile Accident Compensation Act. (No. 548 of the record) The judgment of the court below did not judge whether the non-party 2 is legally liable for the part of the insurance agreement of this case, and there is no error of omission of the judgment as to the defendant's

However, under Article 3 of the Guarantee of Automobile Accident Compensation Act, the term "the person who operates an automobile for his own sake" refers to the person who is in a position as a responsible subject to the control of the operation of the automobile and to enjoy the benefit therefrom, while the owner or the holder of the automobile is confirmed to be in an ordinary position. Thus, even if the specific operation causing an accident is not based on the owner or the holder's intent, the owner or the holder shall be held liable for the accident, unless there are special circumstances to deem that the operation control and the profit of the owner or the holder have been completely lost in the operation, and the owner or the holder shall be held liable for the operation of the automobile (see Supreme Court Decision 86Meu556 delivered on December 23, 1986). However, if the owner of the automobile permits another person to operate the automobile under the owner's name until the registration of change in the name of the owner, the owner or the holder shall be held liable for the operation of the automobile (see Supreme Court Decision 94Da38212 delivered on January 12, 1995).

According to the facts duly established by the court below and the record, the non-party 2 had the non-party 1 use his name in purchasing the automobile of this case upon the non-party 1's request, but the non-party 1 did not receive the name lending fee from the non-party 1. The non-party 1 used the automobile of this case entirely in a de facto marital relationship with the non-party 1, and the defendant was well aware of the fact that the non-party 1 was a spouse in a de facto marital relationship with the non-party 1, and the defendant jointly and severally guaranteed the non-party 1's obligation to pay the installment to the non-party 1's Hyundai Capital Co., Ltd. with the non-party 2. The non-party 1 paid the insurance premium when concluding the comprehensive automobile insurance contract with respect to the automobile of this case on November 24, 2006. The non-party 1 did not know the non-party 2's identity and the reason for the non-party 1's use of the automobile of this case.

Therefore, the non-party 2, the registered insured, cannot be deemed to bear the liability for damages against the defendant under the Guarantee of Automobile Accident Compensation Act in relation to the accident of this case. Thus, even if the court below omitted its judgment, it cannot affect the conclusion of the judgment, and it cannot be a ground for reversal of the judgment of the court below. The allegation in the grounds of appeal on this part

3. Regarding ground of appeal No. 3

Examining the reasoning of the judgment below in light of the records, the court below is just in holding that even if the non-party 2 lent the registration title of the automobile of this case to the non-party 1 who is a partner, it cannot be deemed that the non-party 1 is liable for damages as the "title holder" or the "person supervising the business in lieu of the user" under Article 756 (2) of the Civil Act in this case where the non-party 1 operated the automobile of this case while causing a traffic accident and caused the damage to the defendant. There is no error of law such as misunderstanding of legal principles as to the user's liability or incomplete deliberation as otherwise alleged in the ground of appeal. The ground of appeal on this part is without merit

4. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Jeon Soo-ahn (Presiding Justice)