2019Na57136 Claims

A Stock Company

Law Firm Han-ro et al., Counsel for defendant-appellant

Attorney Yang Jong-hoon

B

Law Firm Gangnam-gu et al.

Attorney Park Ho-young

Seoul Southern District Court Decision 2018 Ghana417123 Decided May 10, 2019

February 27, 2020

April 9, 2020

1. The part of the judgment of the court of first instance against the plaintiff, which orders payment below, shall be revoked.

The defendant shall pay to the plaintiff 203,312 won with 5% interest per annum from August 22, 2018 to April 9, 2020, and 15% interest per annum from the next day to the day of full payment.

2. The plaintiff's remaining appeal is dismissed.

3. Of the total litigation costs, 2/5 shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

4. The part concerning the payment of money under paragraph (1) may be provisionally executed.

1. Purport of claim

The defendant shall pay to the plaintiff 1,015,040 won with 5% interest per annum from August 2, 2018 to the service date of a copy of the complaint of this case, and 15% interest per annum from the next day to the day of full payment.

2. Purport of appeal

The part against the plaintiff falling under the order to pay under the judgment of the court of first instance shall be revoked. The defendant shall pay to the plaintiff 710,528 won with the interest of 5% per annum from August 22, 2018 to May 10, 2019, and 15% per annum from the next day to the day of full payment.

1. Basic facts

A. The plaintiff is an insurer who has entered into an automobile insurance contract with C Vehicle (hereinafter referred to as "Plaintiff Vehicle"), and the defendant is the driver of D Vehicle (hereinafter referred to as "Defendant Vehicle").

B. On May 3, 2018, around 08:12, at the two-lane road in Seongdong-gu Seoul Metropolitan Government, the front side of the Plaintiff’s vehicle, which had been straighted on the same lane on the front side of the two-lane road, was overtaken by the Defendant vehicle on the two-lane road in Seongdong-gu, Seoul, and entered the two-lane road, and the front side of the Plaintiff’s vehicle, which was straighted on the same lane, was shocked with the front side of the Defendant’s vehicle’s driver’s seat (hereinafter “instant accident”).

C. On August 21, 2018, the Plaintiff, as an insurer, paid KRW 1,015,040 after deducting KRW 253,00 from the repair cost of the Plaintiff’s vehicle.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 6, Eul evidence No. 1, or the purport of the whole pleadings

2. The assertion and judgment

A. The parties' assertion

1) The plaintiff's assertion

The instant accident occurred due to the negligence of the driver of the Defendant’s vehicle, which occurred due to the failure to discover the Plaintiff’s vehicle that was under normal progress on the two-lanes of the same road while the Defendant’s vehicle was changing rapidly from the friendly road. Therefore, the Defendant, who is the driver of the Defendant’s vehicle, is obliged to pay the Plaintiff KRW 1,015,040, which is the insurance money paid by the Plaintiff, and damages for delay.

2) The defendant's assertion

The instant accident is an accident caused by the main fault of the Plaintiff’s vehicle, which was changed to the course by operating the steering gear to the right side in order to overtake the vehicle to the right side of the previous vehicle without proceeding in the direction of straight-way from the two-lanes of the said road. The negligence of the Plaintiff’s vehicle is at least

B. Determination

In light of the following circumstances, the Plaintiff’s vehicle was under normal direct driving at the time of the instant accident, and the road driven by the Defendant’s vehicle is friendly with the surface with a concession sign (V). Thus, when the vehicle under operation of the said vehicle does not obstruct the vehicle under operation of the said vehicle, the vehicle under operation of the said vehicle must combine the said vehicle with the vehicle under operation of the said vehicle. Accordingly, even if the Defendant’s prior vehicle stops on the two straight lanes to enter the said two straight lanes, and was driving the said vehicle under operation of the said vehicle, it is reasonable to see that the Defendant’s prior vehicle was under operation of the said vehicle under operation of the said two straight lanes, and even if the Plaintiff’s prior vehicle was under operation of the said vehicle under operation of the said vehicle, even if the vehicle was under operation of the said two straight lanes, and was under operation of the said vehicle under operation of the said vehicle under operation of the said vehicle, it is reasonable to see that the Plaintiff’s fault was more severe than 4% of the vehicle under operation of the instant case.

In addition, the Plaintiff, the insurer of the Plaintiff’s vehicle, pays the insurance proceeds of KRW 1,015,040 at the repair cost of the Plaintiff’s vehicle, and the fact that the Plaintiff’s self-charges paid by the Plaintiff’s driver is 253,000 as seen earlier. The right to indemnity that the insurer who paid the repair cost with the insurance proceeds based on a special contract for self-vehicle damage is entitled to compensate for damages, which is the difference between the amount of the liability to be borne by the obligor and the amount of damages that remains without the transfer to the insured, i.e., the amount of damages that remains (see, e., Supreme Court en banc Decision 2014Da46211, Jan. 22, 2015; Supreme Court Decision 2015Da236431, Jan. 28, 2016). The amount of indemnity that the Plaintiff can claim is 507,824 won as follows.

A person shall be appointed.

A person shall be appointed.

As a result, with respect to KRW 507,824 and KRW 304,512 cited by the first instance court among the Plaintiff’s insurance money payment date, the Defendant, upon the Plaintiff’s claim, has a duty to dispute as to the existence and scope of the above insurance money payment date from August 22, 2018 to May 10, 2019, which is the date when the first instance court rendered a decision, to pay damages for delay calculated at the rate of 5% per annum as stipulated in the Civil Act, and 15% per annum as stipulated in the Act on Special Cases Concerning Expedition, etc. of Legal Proceedings from the next day to the date of full payment, with respect to KRW 203,312, which are additionally cited by the first instance court, from August 22, 2018 to August 22, 2018, that the Defendant’s claim as to the existence and scope of the obligation to pay damages for delay calculated at the rate of 15% per annum from the next day to the date of full payment.

3. Conclusion

Therefore, the plaintiff's claim shall be accepted within the above scope of recognition, and the remaining claims shall be dismissed as without merit. Since part of the judgment of the court of first instance against the plaintiff which partially different conclusions is unfair, the plaintiff's appeal shall be partially accepted and the defendant shall be revoked and the defendant shall be ordered to additionally pay the above amount. The remaining appeal by the plaintiff is dismissed as it is without merit. It is so decided as per Disposition.

Judges of the presiding judge;

Judges Kang Jae-il

Judges Park Gin-uri