In a case where a voluntary driver below the age is a policyholder or a family member living together of the insured under a comprehensive automobile insurance contract which is subject to the driver age limit special terms and conditions for driving, whether he/she is included in a third party who is subject to the exercise of insurer subrogation right (negative)

In the event that the insured acquires the right to claim compensation for the insured's relatives living together, the insured would normally leave the right to claim compensation without exercising his/her right with his/her intention. In such a case, if the insurer permits the insurer to exercise the right not exercised by the insured by subrogation, the insured would result in the same result as not receiving the insurance money, and the effectiveness of the insurance system would be significantly undermined. Since the driver's age limit special terms and conditions aim at reducing the risks of security in the insurance clauses and allowing the premium discounts, the policyholder's intent is to waive the insurance benefits when the special agreement is violated instead of receiving the premium discounts. However, even if the insured drives an insured automobile without any explicit or implied intent of the insured, it is reasonable to view that the insured's voluntary driver is subject to the insurer's subrogated exercise of the right to claim compensation even if he/she drives an insured automobile without being bound by the insurer's explicit or implied intention, it is reasonable to view that the driver's family members living together with the insured's age limit falls short of the age limit limit limit provided in the insurance contract.

Article 682 of the Commercial Act, Article 105 of the Civil Act

Supreme Court Decision 98Da1072 Decided July 10, 1998 (Gong1998Ha, 2075) Supreme Court Decision 99Da40548 Decided February 25, 2000 (Gong2000Sang, 821)

Samsung Fire & Marine Insurance Co., Ltd. (Attorney So-young, Counsel for defendant-appellant)

Defendant

Ulsan District Court Decision 99Na3358 delivered on December 22, 1999

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Ulsan District Court Panel Division. The Plaintiff’s appeal is dismissed.

We examine the grounds of appeal.

1. According to the reasoning of the judgment below, the court below concluded an exclusive automobile insurance contract with the non-party 26 years old or older limited driving and the non-party 1's non-party 1's non-party 1's non-party 2's non-party 1's non-party 1's non-party 2's non-party 1's non-party 8's non-party 2's non-party 1's non-party 1's non-party 2's non-party 1's non-party 8's non-party 2's non-party 1's non-party 2's non-party 1's non-party 1's non-party 2's non-party 1's non-party 1's non-party 2's non-party 1's non-party 9's non-party 1's non-party 1's non-party 1's non-party 1's non-party 3's non-party 1'6's non-party 9'6's non-party 9'

2. Plaintiff’s ground of appeal

In determining the amount of compensation in tort in light of the principle of equity and good faith, comparative negligence is to be considered for the fault of the victim. In applying the amount of compensation in consideration of all the circumstances, such as the tortfeasor and the victim's intentional or negligent degree, occurrence of illegal act and expansion of damages. However, fact-finding or determination of the rate of compensation in relation to comparative negligence belongs to the exclusive authority of a fact-finding court unless it is deemed considerably unreasonable in light of the principle of equity. In light of the records, it is not unreasonable for the court below to consider the above non-party as joint tortfeasor as 30% of the non-party's fault ratio as the defendant and joint tortfeasor, and therefore, the plaintiff's assertion in the grounds of appeal by the plaintiff is not acceptable (in this case, the plaintiff's assertion on the premise that it is possible to exercise the right of compensation in this case is not reasonable).

3. As to the Defendant’s ground of appeal

A. According to the reasoning of the judgment below, the court below rejected the defendant's assertion that the defendant's obligation of compensation held by the defendant is identical to that of the non-party who is the insured who is the duty to support the defendant, and therefore the insurance system becomes ineffective because the burden of the defendant's duty of compensation has not been paid back to the non-party who is the insured, and thus, the defendant who is the defendant living together with a family member is not included in a third party under Article 682 of the Commercial Act. The above third party's assertion is clear in the language and text of the provision, and it is also legislative purpose to avoid liability to any person who is responsible for the occurrence of the insurance accident other than the policyholder or the insured. Thus, the court below rejected the defendant's claim that the non-party is entitled to exercise the right of subrogation on the ground that the non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's actual result of receiving insurance money.

B. However, if the insured acquires the right to claim compensation for his/her relatives living together with the insured, the insured would normally be likely to waive the right to claim compensation or leave the insured without exercising his/her right with his/her intention. In such cases, if the insurer permits the exercise of the right not exercised by the insured by subrogation, as pointed out by the defendant, the insured would result in the same result as being paid insurance money, and the effectiveness of the insurance system would be significantly impaired. The special terms and conditions of driving limited to the driver's age would result in reducing the risks of security in the insurance clauses and allowing premium discounts. Therefore, the insured's intent would be to waive the insurance benefits when the insured violates the special agreement instead of receiving premium discounts. However, even if the insured drives an insured automobile without being expressed or implied intent of the insured, it is reasonable to view that the insurer is liable as an exception to the exemption clause in the case of a person living together with his/her family members living together with his/her age falling short of the age limit of 2, 198, in light of the special terms and conditions of the Commercial Act.

C. Nevertheless, the court below rejected the defendant's assertion that the plaintiff cannot exercise the right of subrogation against the defendant. The court below erred by misapprehending the legal principles on subrogation against the insurer under Article 682 of the Commercial Act, which affected the conclusion of the judgment. Thus, the defendant's ground of appeal pointing this out is with merit.

4. Therefore, without further proceeding to decide on the Defendant’s remaining grounds of appeal, the part against the Defendant among the judgment below is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The Plaintiff’s appeal is dismissed as it is without merit. It is so decided as per Disposition by the assent of

Justices Lee Jin-hee (Presiding Justice)