Plaintiff (Law Firm Handeok, Attorneys Kim Young-won et al., Counsel for the plaintiff-appellant)

Hyundai Marine Fire Insurance Co., Ltd. (Attorneys Obat-jin et al., Counsel for the defendant-appellant)

May 1, 2012

1. All claims filed by the Plaintiff (Counterclaim Defendant) and the counterclaim claims by the Defendant (Counterclaim Plaintiff) are dismissed.

2. Of the costs of lawsuit, the costs incurred by the principal lawsuit shall be borne by the Plaintiff (Counterclaim Defendant), and the costs incurred by the counterclaim by the Defendant (Counterclaim Plaintiff) respectively.

The principal lawsuit: The Defendant (Counterclaim Plaintiff; hereinafter “Defendant”) pays to the Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”) 14,798,704 won with 5% interest per annum from June 17, 2008 to the service date of a copy of the instant complaint, and 20% interest per annum from the next day to the day of full payment.

Counterclaim: The plaintiff shall pay to the defendant 87,856,560 won with the interest of 5% per annum from October 8, 2010 to the service date of a duplicate of the counterclaim of this case, and 20% per annum from the next day to the day of complete payment.

1. Basic facts

A. On June 17, 2008, the Nonparty driven a freight truck (vehicle number 1 omitted) (hereinafter “accident vehicle”) around 06:20 on June 17, 2008, the Nonparty was driving on the backway without the central line in front of ○○○ Do, Seocheon-gun, Chungcheongnam-gun, Chungcheongnam-gun, Seocheon-gun, Chungcheongnam-do, as a dong apartment room. In this case, the Plaintiff was driving (vehicle number 2 omitted) on the opposite part of the vehicle in front of the accident and the part on the left side of the driver’s seat was faced with the part on the vehicle in front of the accident and the part on the part of the vehicle in front of the accident. The Plaintiff was suffering from the injury of blood transfusion, etc. on the day of the accident.

B. The Defendant is an insurer who entered into an automobile comprehensive insurance contract with respect to the vehicle involved. From September 24, 2008 to October 7, 2010, the Defendant paid KRW 87,856,560 to the hospital with the Plaintiff’s medical expenses.

C. The Defendant’s general terms and conditions of personal automobile insurance include the following:

① An insurance company shall pay insurance money after deducting “amount deducted” from the aggregate amount of “amount calculated according to the standard for the payment of insurance money” and “expenses” of this standardized contract. In the event a lawsuit is filed, the amount that the insured shall compensate for the damage claimant (including damages for delay) according to the final and conclusive judgment of the court of the Republic of Korea shall be deemed “amount calculated according to the standard for the payment of insurance money.” (Article 21-2(2)

2. When an accident occurs to a claimant for damage who is legally liable for damage, the claimant for damage may directly claim insurance proceeds to the insurance company (II. 2 of the Terms and Conditions).

(3) With respect to the amount calculated pursuant to the standard terms and conditions I, the personal compensation II, i.e., the amount calculated according to the ratio of fault on the part of the injured party, if the amount calculated after offsetting according to the ratio of fault on the part of the injured party is less than the amount corresponding to the medical treatment expenses, the amount corresponding to the treatment expenses (including the food for

[Reasons for Recognition] Facts without dispute, Gap 3, 4, 15, Eul 2-1 to 4, Eul 3-1 to 15, the purport of the whole pleadings

2. Determination on the main claim

(a) Occurrence of liability for damages;

(1) Grounds for liability

According to the above facts, the defendant is liable for the damage suffered by the plaintiff as the insurer of the accident vehicle.

(2) Determination as to the assertion of immunity

The defendant asserts that this accident is exempted since the accident occurred as it was caused by the unilateral mistake that the plaintiff failed to operate the steering gear and the brake system properly and caused the back of the accident vehicle due to the non-party's failure to operate the steering gear and the brake.

There is no other evidence to acknowledge that there is insufficient evidence to acknowledge the Defendant’s assertion solely on the basis of the statements and images of the evidence Nos. 1 to 2-1 to 4, 3-3, and 4 of the evidence Nos. 2 (the Plaintiff and the Non-Party were not involved in the accident, and the Non-Party seems to have never existed. The Non-Party stated about the investigation agency on the date of the accident. However, the Plaintiff was given an opportunity to make statements at the investigation agency only after two months have elapsed since the date of the accident, and the Plaintiff was unable to properly memory the background of the accident due to head injury. In full view of the fact that the police officer dispatched immediately after the accident appears to have been preparing investigation documents based on the Non-Party’s unilateral statement and the vehicle parked after the accident, there is no evidence to support the situation. Rather, considering the shape of the accident on the road or the shock, degree of shock, degree of shock, etc. of each vehicle without the central line of the accident, the Defendant’s assertion that the Defendant did not have a duty of due care to inform the front and opposite of the vehicle.

(3) Limitation of liability

In light of the above circumstances and the purport of the damage compensation lawsuit, the Defendant’s liability is limited to 30% in light of the following: (a) the Plaintiff driven an Otoba without using a safety appearance; (b) the injury was concentrated on the head of each vehicle; (c) the shock level of each vehicle; (d) the weather on the day of the accident; and (e) the road shape.

(b) Scope of 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 calculation of the current value at the time of the accident of the amount of damages shall be based on the simple interest rate calculated by subtracting the interim interest at the rate of 5/12 per month. And it shall be excluded that the parties' arguments are not separately explained.

(1) Actual income

(A) Personal data: The plaintiff is a male on April 6, 1948 and remains 60 years of age and 2 months of age at the time of the accident.

(b) Income and operating period: The urban daily wage of the ordinary worker, and until the full 62 years of age;

The Plaintiff asserts that the lost income should be calculated on the basis of the unit price of molded wood [2,971,039 won (97,678 won x 365 days x 365 days)/12 months from June 17, 2008 to August 27, 2010] according to the investigation report on the actual condition of construction business wages because the Plaintiff was a molded wood hole as at the time of the accident. The Plaintiff asserts that the lost income should be calculated on the basis of the unit price of molded wood hole (105,805 won x 22 days) according to the investigation report on the actual condition of construction business wages. Since it is difficult to believe that Gap’s evidence No. 111-1 to 6 is difficult, and there is no other evidence to acknowledge that the Plaintiff had been a 60-day operated wage at the site of the Plaintiff’s 124th day after August 28, 2010, the Plaintiff was 60-day operated wage at the site.

(c)Ethy disability, king disability and rate of loss of labour capacity;

(i)competence;

(1) Loss of labor capacity of 27% permanently due to right paralysis, etc. [Article 9-B-2 of the Mabrid Disability Assessment Table, Part IX-B-2 of the Mabrid Disability and Part III of the occupational coefficient [Article 3 of the occupational coefficient shall apply to the appraisal conducted by applying the occupational coefficient 7 to the head of the Guro University Hospital at Korea, although it is recognized that the appraisal conducted an appraisal was 36% of the loss rate of labor capacity, the Plaintiff’s income is calculated on the premise of urban daily wage, and the above disability constitutes a disability to new boundaries, thereby applying the occupational coefficient 3];

(2) Loss of labor capacity by 3% permanently due to the post office (based on the method of the U.S. Medical Association)

(3) Combined disability rate: 29.19% (=27 + (100 - 27) x 3/100).

(ii) king obstacles;

The plaintiff had already lost 24% labor ability on a permanent basis due to the real name of the right eye before the accident.

3) Ratio of loss of labor capacity

① From June 17, 2008, which was the date of the accident, to August 27, 2010: 76% (i.e., the 100% - the king disability 24%), and the Plaintiff did not receive hospitalized treatment for the period from September 28, 2009 to October 3, 2009, and from December 24, 2009 to December 27, 2009, it is reasonable to view the labor disability loss rate of the Plaintiff during the above period as equal to the labor disability loss rate during the period of hospitalized treatment, in full view of the Plaintiff’s injury, disability degree, degree of treatment, and total duration of hospitalization.

(2) From August 28, 2010 to the end of the operation period: 22.18% [[[29.19 + (100 - 29.19 x 24/100}]

(d) Calculation: The actual income is KRW 30,147,538.

A person shall be appointed.

(2) Active damages

(a) Fees: 2,483,430 won;

(B) Future treatment costs: 1,551,000 won per annum for the outpatient treatment costs (2.60,000 won for outpatient treatment + drug treatment costs + 511,000 won for physical treatment costs + 7.80,000 won) is required for two years from November 25, 2010, which is the date of physical appraisal. Since the treatment costs spent prior to the date of the conclusion of the pleading are claimed for the period treatment, the said costs are deemed to have been first disbursed on the following day after the date of the conclusion of the argument in this case and are calculated at the present price at the time of the accident, the said costs are 1,301,444 won.

A person shall be appointed.

(C) In light of all of the following factors: 3,811,800 won (i.e., 63,530 won x 60 days), the parts and degree of the Plaintiff’s injury and the aftermath disability, treatment process, hospitalization period, etc., it is reasonable to deem that one adult female nursing has been required for 60 days from the date of the accident.

(3) Limitation of liability: 30% Defendant’s liability

(4) Consolation money: 13 million won (including the circumstances of this accident, the age and degree of the Plaintiff’s injury and the injury and the degree thereof, and all other circumstances shown in the argument of this case)

(5) Set-off: 61,49,592 won, which is the part equivalent to the plaintiff's negligence, out of 87,856,560 won paid by the defendant, shall be deducted from the amount of damages to be paid by the defendant. Thus, 24,323,263 won [24,323,263 won [24,323 won [30,147,538 won + 2,483,430 won for property damage + 3,83,430 won for the old medical expenses + 3,81,800 won for the old medical expenses + 1,301,444 won + 0.3} + 37,176,329 won [24,323,263 won, 61,649,592] calculated earlier, the defendant shall not be liable for damages to the plaintiff.

C. Sub-decision

Therefore, the defendant does not have any further payment to the plaintiff in relation to this accident, so the plaintiff's claim of this case is without merit.

[Reasons for Recognition] In the absence of dispute, Gap evidence 6-1 to 7, Gap evidence 9-1 to 10, Gap evidence 10-1 to 6, Gap evidence 12-1 to 4, Eul evidence 12-4, 4, and 5, each of the records and images of Gap evidence 6-1 to 6-1, Gap evidence 10-1 to 12-5, and the result of the commission of physical examination to the head of Korea University Hospital at Korea in this

3. Judgment on the counterclaim

A. The defendant's assertion

This accident occurred due to the plaintiff's unilateral mistake. Therefore, the plaintiff is obligated to refund to the defendant the amount of KRW 87,856,560 received from the medical expenses without any legal ground and damages for delay.

B. Determination

On the other hand, as seen earlier, the accident occurred in competition with the plaintiff and the non-party. Comprehensively taking account of the defendant's terms and conditions, the defendant, when a lawsuit is filed, shall pay insurance money to the claimant in accordance with the final judgment. However, if the lawsuit is not filed, insurance money shall be paid in accordance with the standard for the payment of insurance money as stipulated in the terms and conditions. According to such standard, if the total amount of the liability for damages, such as active damages, passive damages, and consolation money, which the victim shall compensate after offsetting the negligence, falls short of the medical expenses, the insurance money shall be paid. However, the defendant, who is the insurer, paid the medical expenses to the hospital in accordance with the standard for the payment of insurance money at will by subrogation of the insured. Even if the total amount of the liability for damages after offsetting

Therefore, it cannot be said that the Defendant paid KRW 87,856,56,560 to the hospital that provided the Plaintiff with the medical treatment expenses that the Defendant should pay to the Plaintiff. Thus, the Defendant’s claim for return of unjust enrichment premised on this cannot be said to have incurred any loss to the Defendant, or that the Plaintiff provided any benefit without any legal grounds. Therefore, the Defendant’

4. Conclusion

Therefore, all of the plaintiff's counterclaims and the defendant's principal lawsuit are dismissed as it is without merit. It is so decided as per Disposition.

Judge Hah Jin