[1] The case where an offer to enter into a compromise agreement is invalidated

[2] The validity of an offer to the effect that if the offerer does not raise any objection within a predetermined period of time, it shall be deemed that the consent is given.

[1] According to Articles 527 and 528(1) of the Civil Act and Article 52 of the Commercial Act, in a case where an insurance company compensates for the total amount of damages suffered by a third party due to a traffic accident caused by an insured vehicle of each other, the insurance company may not, in principle, withdraw the subscription in order to enter into a settlement agreement with the operator of another insured vehicle that is jointly liable for damages or with the insurance company concerned. However, if the consent period is set, the subscription period may expire if the subscription period is set, and if it does not exist, the subscription period shall expire if the other party reaches the other party, and the reasonable period may expire if the other party determines whether to accept the subscription and reply. This is objectively determined by taking into account various circumstances such as methods of subscription and acceptance, importance of the terms and conditions of the contract, transaction practices, etc.

[2] If Article 53 of the Commercial Act is not applicable because the offer was made between the parties in a regular transaction relationship or in relation to the contract belonging to the same type of business or the same type of business, it is not obligated to respond to whether the other party to the offer will accept the offer. Thus, even if the offerer stated that he will be deemed to have accepted the offer within the predetermined period of time, it can only have the meaning of determining the period of acceptance in accordance with the circumstances, unless the other party is bound.

[1] Articles 527, 528(1), 529, and 733 of the Civil Act; Article 52 of the Commercial Act / [2] Article 528(1) of the Civil Act; Article 53 of the Commercial Act

[Plaintiff, Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellant)

Dongyang Fire and Marine Insurance Co., Ltd. (Law Firm Han-dong Law Office, Attorneys Yu-hee et al., Counsel for the defendant-appellant)

Defendant 1 and one other

Daejeon District Court Decision 98Na2493 delivered on September 3, 1998

The part of the judgment of the court below against the plaintiff is reversed. This part of the case is remanded to Daejeon District Court Panel Division.

The grounds of appeal are examined.

1. According to the reasoning of the judgment of the court of first instance and the reasoning of the judgment of the court of first instance cited by the court below, the court below recognized the following facts by comprehensively taking account of the evidence

Defendant 1 entered into a comprehensive automobile insurance contract with Defendant Samsung Fire & Marine Insurance Co., Ltd. (hereinafter referred to as the “Defendant Co., Ltd.”) on his own (vehicle No. 1 omitted) car (hereinafter referred to as “accident car”) on November 1, 1996, when driving an accident vehicle on November 1, 1996, and driving on the Honam Highway at around 05:00, while discovering rainwater on the surface and making a sudden stop, it is right to stop one-lane and stop the accident vehicle without taking safety measures to prevent the sudden accident by means of islands, light signal or flame signal, etc.

In that situation, Nonparty 1, an employee of Nonparty 1, an employee of Nonparty Dog Korea Co., Ltd. (hereinafter referred to as “Nonindicted Company”), was injured by three victims, including Nonparty 2, etc., who was driving at a speed of 60 km (vehicle number 2 omitted) at a speed of 60 - 70 kilometers at the time of the accident vehicle owned by the Plaintiff Company (hereinafter referred to as “accident truck”).

On December 11, 1996, the Plaintiff Company paid the victims the total amount of KRW 132,451,90,00 as the insurer of the truck involved in the accident. On December 11, 1996, the Plaintiff Company notified the Defendant Company of the first notification that the rate of fault of the truck involved in the accident and the vehicle involved in the accident would be 80:20, and if there is no objection within seven days, the Plaintiff Company would be deemed to consent to the liability for damages according to the rate of fault determined by the Plaintiff Company. On April 29, 1997, the Plaintiff Company notified the Defendant Company of the second notification that the rate of fault of the truck involved in the accident and the vehicle involved in the accident would be 20:80,00,000, instead of the first notification ratio. However, the Defendant Company notified the Plaintiff Company of the first notification ratio on behalf of the Plaintiff Company on April 30, 1996.

Based on the above facts of recognition, the first notification of the plaintiff company on December 11, 1996 cannot be withdrawn as an offer of a compromise contract. Thus, even if the plaintiff company made the second notification of correction of the first notification as of April 29, 197, it cannot be deemed that the first notification was withdrawn, and the plaintiff company notified that it would be deemed to have consented if it did not raise any objection within 7 days from the time the first notification was made. Thus, even if the defendant company consented to the first notification of April 30, 1997, it cannot be deemed that the first notification of the plaintiff company and its first notification of December 11, 1996 were null and void. Accordingly, it is determined that a compromise contract was concluded between the plaintiff company and the defendant company on the share of damages to the traffic accident of this case and the second notification of the plaintiff company on April 30, 197, the part corresponding to the damages claim ratio of the plaintiff company's first notification of the damages claim against the victims is dismissed.

2. According to Articles 527 and 528(1) of the Civil Act and Article 52 of the Commercial Act, in a case where an insurance company compensates for the total amount of damages suffered by a third party due to a traffic accident caused by an insured vehicle insured by each other, the insurance company may not, in principle, withdraw the subscription in order to enter into a settlement agreement with the operator of another insured vehicle jointly liable for damages or with the insurance company concerned. However, if the period of acceptance is set, the subscription is void if the period of acceptance is set, and if not, if the period of acceptance is set, the reasonable period of time is set. The subscription refers to the period of time required for the other party to decide whether to accept the subscription after reaching the other party, and the reasonable period of time is set objectively in light of the method, importance of the terms and conditions of the contract, transaction practice, etc. It cannot be deemed that the subscription is objectively set in consideration of the other party to the contract. In addition, even if Article 53 of the Commercial Act applies to a person who is in a regular trading relationship, the other party to the subscription is not subject to the subscription.

However, according to the records, the plaintiff's consent is deemed to have been given if no objection is raised within 7 days from the date of the second pleading of the court below, and even if not, since the first notification of the plaintiff company was invalidated by a considerable period of time, the consent of the defendant company on April 30, 1997, which was made thereafter was alleged to have no validity (the legal brief dated July 30, 1998). However, the court below held that the defendant company's consent was valid even if it was made after that period of time, since the plaintiff company's consent was deemed to have been given only when it did not raise an objection within 7 days from the time of the first notification.

However, in light of the above legal principles, even if the plaintiff company expressed that it will be deemed to have accepted if it did not raise an objection within seven days from the time of the first notification, unless Article 53 of the Commercial Act is applicable, it cannot be binding against the defendant company, unless the defendant company is subject to the application of Article 53 of the Commercial Act. Therefore, the nature of the contract cannot be determined unless the defendant company expresses its intention of acceptance or rejection, and the period of seven days can be deemed to have set the consent period, and the contract can not be concluded accordingly.

Nevertheless, the court below held that the defendant company agreed on April 30, 1997 with respect to the first notification of the plaintiff company's first notification and concluded a settlement contract between the plaintiff company and the defendants regarding the loss apportionment ratio of the traffic accident of this case. However, the court below erred by misapprehending the legal principles on the period of consent, which affected the conclusion of the judgment. The part pointing this out in the grounds of appeal is with merit.

3. Therefore, the part of the lower judgment against the Plaintiff is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices.

Justices Jeong Jong-ho (Presiding Justice)