Responsibilities of a driver who leaves a driver's seat after stopping a motor vehicle after sticking the starting heat.

Since the operation of a motor vehicle brings about danger to the life, property, etc. of a third party unless a person has a special skill, the driver or manager of the motor vehicle has a duty to prevent the third party from driving the motor vehicle without permission, and if a third party has caused an accident while driving the motor vehicle without permission, the owner of the motor vehicle and the driver of the motor vehicle shall not be exempted from liability

Article 3 of the Guarantee of Automobile Accident Compensation Act

May 28, 1974, 74Da80 decided May 28, 197 (Article 3 (10) of the Guarantee of Automobile Accident Compensation Act, No. 490, 781)

Plaintiff 1 and four others

Co., Ltd.

Suwon District Court (81 Gohap30)

1. Revocation of the part of the original judgment against the defendant who ordered payment from November 15, 1980 to the full payment rate of 2,788,740 won and the part against the defendant who ordered payment from November 15, 1980 to the full payment rate of 5%, and the same part of the plaintiff's claim is dismissed.

2. The defendant's remaining appeals against the plaintiff 1 and all remaining appeals against the plaintiffs are dismissed.

3. All the costs of appeal arising between the plaintiff 1 and the defendant are divided into six parts of the costs of appeal between the plaintiff 1 and the defendant. One of the costs of appeal is the same plaintiff, the remainder is the defendant's expenses, and the remaining costs of appeal between the plaintiffs and the defendant are the defendant

4. Of the money received due to a sentence of provisional execution in the original judgment, Plaintiff 1 shall pay to the Defendant a sum of KRW 136,900.

5. The above 4 paragraphs can be provisionally executed.

The defendant shall pay 3,125,640 won to the plaintiff 1, 300,00 won to the plaintiff 2, and 1,947,934 won to the plaintiff 3, and 50,000 won per annum to the plaintiff 4, and 50% per annum from November 15, 1980 to the full payment.

The costs of lawsuit shall be borne by the defendant and a declaration of provisional execution.

The part against the defendant in the original judgment shall be revoked.

The plaintiffs' claims are dismissed.

Litigation costs are assessed against all of the plaintiffs in the first and second instances.

The purport of the request for return of payment by declaration of provisional execution

The judgment of the court below and the provisional execution order that the plaintiff 1 shall return gold 2,925,640 won, gold 50,000 won, gold 1,927,934 won, gold 30,000 won, and gold 30,000 won, respectively, to the defendant

1. Occurrence of liability for damages;

Around 17:00 on November 15, 1980, Nonparty 1, a driver of a fence truck with 8.5 tons, who is the Defendant-owned (vehicle Number omitted) left the said vehicle without providing a brake device after stopping the said truck in order to see it on the street in front of 232, Suwon-si, Suwon-si, Suwon-si, where he loaded and operated soil for reclamation on the said truck on November 17, 1980. Nonparty 2, who is the Defendant: (a) left the said vehicle without a driver’s license; (b) was driving the vehicle under the influence of alcohol and driving the vehicle at about 40 meters; (c) was on the part of the driver; and (d) was on the part of the Plaintiff 1, who was on the part of the Plaintiff 1, and was on the part of the Plaintiff 2, who was on the part of the Plaintiff 3, the Plaintiff 1, who was on the part of the Plaintiff 1, was not liable for the damages caused by the said accident.

On the other hand, the defendant argued that the above accident occurred when the non-party 2 was under the influence of alcohol without permission, so the operation was not done for the defendant as stipulated in Article 3 of the above Act, and that the defendant is not responsible for the above accident since there is no negligence on the part of the defendant or the non-party 1, the driver, and therefore the defendant is at risk of causing harm to the life, property, etc. of a third party. Thus, the owner or the manager of the vehicle has a duty to prevent the third party from driving without permission. Thus, when the driver deserts the vehicle, he is obliged to stop driving the vehicle so that the other person can not drive the vehicle without permission, and to stop the door after removing the speed of the vehicle. In this case, the non-party 1 is negligent in neglecting this duty of care. The above vehicle is operated by the non-party 1's negligence during soil transport for the defendant, and the operation of the vehicle is deemed to have been caused by the non-party 2, who is the owner of the above vehicle.

2. Scope of damages.

(A) Property losses

Comprehensively considering the testimony of the above witness, on-site inspection by the court below, and the results of the appraisal by the new expert witness at the court below as to the statement Nos. 3 (Statement) which can be recognized as the authenticity by the testimony of the witness non-party 3, the court below held that the total amount of 10 persons for futures owned by the plaintiff No. 1 who had been displayed at the meeting of the court below due to the above accident is damaged to the total amount of 2,632,140 won for 170 kinds of goods such as bread, liquor, bread, foodstuffs, powder, and other miscellaneous 170 items, which are damaged, the exchange value of which has been lost as the goods. One for the tobacco display place which is a facility, one making soup, six for the chair, six for the chair, and two for the table, which is the sum amount of 193,500 won, which can be used as the witness, and the fact that part of the testimony of the plaintiff No. 397 and the above evidence No. 4 of the court below cannot be acknowledged otherwise. 98.

Therefore, as property damage, the defendant should pay to the plaintiff 1 the amount of KRW 2,825,640 and the amount of KRW 1,897,934 to the plaintiff 3, respectively.

(B) Consolation money

Since it is recognized in light of the empirical rule that the plaintiffs suffered mental suffering due to the above accident, the defendant has an obligation to accept it. Considering the background of the accident in this case, the degree of injury of the plaintiff 1 and the degree of damage to the above property, the plaintiffs' status status, property level, etc., the defendant should pay 100,000 won to the plaintiff 1, 50,000 won to the plaintiff 2, and 30,000 won to the plaintiff 3,4, and 5 respectively.

(C) Loss offsetting

Therefore, the defendant shall compensate the plaintiff 1 for 2,925,640 won (2,825,640 won + 100,000 won), 50,000 won to the plaintiff 2, and 1,927,934 won (1,897,934 won + 30,000 won) to the plaintiff 3, 30,000 won, respectively. Since the defendant argued that 1 shall pay 136,900 won as partial damages of property and mental damage, 136,90 won should be offset for profits and losses, the defendant shall pay 30,000 won per annum from the non-party 1's agent, 30,000 won per annum 1,970 won per annum from the non-party 1's Korean corporation, 30,000 won per annum 4,500 won per annum, 30,500 won per annum, 1981.

3. Judgment on the defendant's application for return of the payment upon a declaration of provisional execution

In full view of the preceding purport of the pleadings in the evidence Nos. 2-1, 2 (each receipt), 4-1, and 2 (Pledge) of the evidence Nos. 2-1, 4-1, and 2 (Promise of Promissory Notes), the Plaintiffs received 2,925,640 won from the Defendant’s representative director on Oct. 16, 1981, 246, 200 won, and 30,934 won and 30,000 won, respectively, for the payment of the principal amount of KRW 4,963,574 from the Defendant’s bank on Oct. 15, 1981, and received from the Defendant’s representative director on Nov. 16, 1981, 203, 463,500 won, and 197.1.7.15.1, 198

Therefore, all of the above amounts that the plaintiffs except the plaintiff 1 received from the defendant by the above provisional execution sentence, are within the above recognition scope, but the amount that the plaintiff 1 is entitled to receive is 2,788,740 won of the above recognition, and the plaintiff 1 received 2,925,640 won of the above recognition. The plaintiff eventually received 136,90 won of the difference. Thus, the plaintiff should return the above excess amount.

4. Conclusion

Therefore, the plaintiffs' claim of this case is justified within the scope of the above recognition, and the remaining claims are dismissed. The part against the defendant who ordered payment in excess of the above recognition among the original judgment against plaintiff 1, which differs from this part, is unfair, and since the defendant's appeal against this part is with merit, the remaining appeal against the plaintiff as the defendant is dismissed, and since the defendant's remaining appeal against the plaintiff as the defendant is justified, the original judgment against the plaintiff as the defendant is just, and there is no ground for appeal against the plaintiff 1 and the defendant. Therefore, all of these appeals are dismissed, and the costs of appeal between the plaintiff 1 and the defendant are divided into six parts, and one of them are assessed against the plaintiff 1 and the defendant, and the costs of appeal arising between the other plaintiffs and the defendant are assessed against the defendant as the losing party, and the defendant's claim for return of payment due to the provisional execution order against the plaintiff 1 is justified within the extent of the above recognition against the plaintiff 1, and the remaining part is dismissed, and the provisional execution order is attached without merit

Judges Lee Dong-gu (Presiding Judge) Lee Dong-gu (Presiding Judge)