The case holding that the court below's non-compliance with the standard terms and conditions under the "Mutual Agreement on the Settlement of Motor Vehicle Insurance Dispute" is still applicable to the case where the non-company, which is the pre-sale agent and the victim, did not comply with the standard terms and conditions under the above "the standard terms and conditions under the "Mutual Agreement on the Settlement of Motor Vehicle Insurance Dispute", and thus did not apply to the case where the non-company, which is the pre-sale agent, compensates the whole amount of damages to the insured non-operating company's mother who was on board Byung's insurable vehicle due to the shock from the negligence of the non-operating company's driver's negligence and paid the whole amount of medical expenses to Byung in accordance with the provision on the compensation for the total amount of expenses under the insurance contract, and the non-company, which is the pre-sale agent's non-execution agent's liability for damages, still did not apply to the non-execution agent's liability for damages after the non-execution agent's non-compliance with the standard terms and conditions under the above "the non-execution agent's liability for damages."

The case holding that, even if the insured vehicle of Byung, who is a non-life insurance company Gap, as the non-life insurance company Eul, was removed from the insurance company's negligence before and after the insurance company's operation, Eul's mother was injured by Byung's insurable vehicle, and the non-company paid the total amount of medical expenses to Byung pursuant to the provisions on compensation for the total amount of the insurance clauses, Byung filed a claim for reimbursement at the rate of negligence against the non-life insurance company, and that Byung's claim for reimbursement against the non-life insurance company's status or social life is one of the two different factors, since the non-life insurance company's liability for reimbursement was no longer applicable to the non-life insurance company's liability for damages under the "Mutual Agreement on Compensation for Automobile Insurance Co., Ltd." (the agreement providing the whole amount of compensation for damages to the non-life insurance company)" and the subsequent treatment company's liability for damages, which did not apply to the non-life insurance company's liability for compensation for damages, regardless of whether the non-life insurance company's liability for compensation clause was applicable to the victim's negligence.

Article 726-2 of the Commercial Act, Article 105 of the Civil Act

Hyundai Marine Fire Insurance Co., Ltd. (Law Firm Dowon, Attorneys Han-gu, Counsel for defendant-appellant)

Reference Non-Life Insurance Co., Ltd. (Law Firm Name, Attorneys Hong-jin et al., Counsel for the plaintiff-appellant)

Seoul Central District Court Decision 2017Na37644 decided August 21, 2018

The judgment of the court below is reversed, and the case is remanded to the Seoul Central District Court Panel Division.

The grounds of appeal are examined.

1. The judgment of the court below

A. Review of the reasoning of the lower judgment and the record reveals the following facts.

1) The Plaintiff is an insurer who has entered into a comprehensive automobile insurance contract with respect to Nonparty 1’s vehicle (hereinafter “Plaintiff”), and the Defendant is an insurer who entered into a comprehensive automobile insurance contract with respect to the vehicle owned by the KSP Co., Ltd. (hereinafter “Defendant”).

2) While Nonparty 2, who is the consent insured of Defendant vehicle, was negligent in driving the Defendant vehicle, Nonparty 2, while driving the Defendant vehicle, caused the Plaintiff vehicle to shock the Defendant vehicle (hereinafter “instant accident”). Accordingly, Nonparty 2’s mother who was on board the Defendant vehicle, was injured by Nonparty 3.

3) The Plaintiff paid Nonparty 3 KRW 218,512,010, including medical expenses of KRW 168,512,010, and received KRW 20,000 from the Defendant. The Plaintiff and the Defendant agreed that the Defendant’s fault ratio is 50%, respectively.

B. The lower court dismissed the Plaintiff’s claim for reimbursement of the instant amount for the following reasons.

1) As long as the Plaintiff, one of the joint tortfeasors, paid damages to Nonparty 3, the injured party, the Plaintiff has the right to claim the amount equivalent to the ratio of fault of the Defendant against the Defendant, who is the insurer of Nonparty 2, the other joint tortfeasor, unless there are special circumstances.

2) However, since the joint tortfeasor 2 and the victim non-party 3 are in a social relationship with the mother and child who is a lineal family member, the damage compensation caused by the accident in this case shall apply to the victim's negligence. In this case, the plaintiff, who is a prior manager under the Mutual Agreement on the Deliberation of Automobile Insurance Dispute (hereinafter "the instant mutual agreement") and the implementation agreement thereof (hereinafter "the implementation agreement of this case"), should compensate only the remaining amount offset by the non-party 2's negligence by applying the victim's negligence pursuant to Article 45 (1) of the enforcement agreement of this case, or compensate by taking the procedure under Article 45 (2) and (3) of the enforcement agreement of this case. However, without applying the victim's negligence, the plaintiff paid the damage compensation to the non-party 3 without taking the above procedure.

3) Therefore, the Plaintiff cannot claim reimbursement against the Defendant since it violated Article 45(1) of the instant enforcement agreement.

2. However, we cannot accept the judgment of the court below for the following reasons.

A. The meaning of Article 45 of the instant enforcement agreement under the instant mutual agreement

According to the reasoning, records, etc. of the lower judgment, the following circumstances are revealed as to the instant mutual agreement and the enforcement agreement, and Article 45 of the enforcement agreement of this case (hereinafter “instant provision”).

1) The instant mutual agreement aims to resolve disputes arising between an insurance company or mutual aid company and mutual aid company on the existence and scope of liability on the grounds that the liabilities for automobile insurance or automobile mutual aid as stipulated in the Guarantee of Automobile Accident Compensation, etc. competes with each other in a reasonable and economic manner (see Articles 1 and 2 subparag. 1 and 3). The instant mutual agreement was formulated to regulate the matters delegated by the instant mutual agreement and the detailed enforcement guidelines and detailed procedures of the instant mutual agreement.

Article 36 of the instant mutual agreement provides that one of multiple agreements companies shall pay damages for the prompt payment of damages to the victim due to joint tort (Article 36). The enforcement agreement of the instant mutual agreement refers to the agreement company that preferentially pays damages to the ship manager and the company after the agreement that is responsible for the payment of indemnity to the ship manager, and then provides for the standards for preferential compensation (Article 2(2)), and Chapter VIII provides for the standards for preferential compensation (Article 2(8). The “standards for preferential compensation” provides for the method of determining the ship manager, the method of consultation on the ratio of negligence between the ship manager and the post manager, the procedure for joint compensation, the method and procedure for indemnity between the ship manager and the post manager, and the method of indemnity and settlement between the ship manager and the post manager.

The instant provision provides that, as a part of the “Preferred Compensation Criteria”, where the victim was negligent on the part of the victim, the ship manager shall apply the fault on the part of the victim and shall not claim compensation for that part, if the ship manager is able to apply the fault on the part of the other passenger, and if there is a possibility of dispute as to whether the fault on the part of the victim is applicable (Paragraph 1). Furthermore, where there is a possibility of dispute as to whether the fault on the part of the victim is applicable, the ship manager shall be notified to the latter manager and shall hear his opinion (Paragraph 2), and where there is no objection as a result of notification to the latter manager, or where the latter manager fails to present his opinion within 10 days from the date of notification, the ship manager shall first compensate for the damage and claim compensation for compensation

2) Therefore, the provisions of this case are applicable to cases where the injured party’s negligence is recognized or recognized among the accidents caused by joint tort. Here, “victim’s negligence” refers to “the fault of a person who is in a relationship with the injured party in terms of one’s status or living relationship” as widely used in tort damages. When determining the scope of compensation for damages due to general tort, it is considered with the injured party’s negligence for the purpose of fair sharing of damages (see, e.g., Supreme Court Decision 96Da26183, Nov. 12, 1996). According to the provisions of this case, the ship manager should investigate and verify whether the ship manager has a relationship between the injured party and the injured party’s status or living relationship in an appropriate way when conducting accident investigation, and if it is evident that the negligence is not applied to the injured party’s negligence, it is necessary to pay damages in accordance with the procedure and method stipulated in this case. If the provisions of this case are properly observed, unnecessary decrease or dispute between the ship and after the ship manager appears to have occurred.

B. In the case where there exist multiple insured persons liable for damages to the victim due to the same automobile accident in the automobile insurance, insurable interests also exist independently for each insured person, so in principle, the existence of liability for compensation should be determined by individually taking into account the requirements for the occurrence of liability for damages, whether the exemption clause is applied, etc. for each insured person (see Article 9 of the defendant's automobile insurance terms). According to such individual application principles, even if some of the multiple insured persons do not have the requirements for the occurrence of liability for damages, or there are no grounds for exemption, the insurer ultimately bears the liability for compensation if there is no requirements for the occurrence of liability

According to the provisions of the terms and conditions or legal principles, only a part of multiple insured persons are in a relationship that forms the whole part of their status or living relationship with the victim and, in the absence of such relationship, the insurer shall be liable for compensation regardless of the fault on the part of the victim. If the latter manager is in such situation, the latter manager cannot be deemed to have violated the provisions of this case on the ground that the latter manager paid the full amount of damages to the victim without complying with the procedure or method prescribed in the provisions of this case. This is because, from the standpoint of the latter manager, the latter manager may claim compensation against the latter manager on the basis of the insured who is not the victim from among the insured workers of the latter manager. Ultimately, it is reasonable to view that the provisions of this case does not apply to the case where the latter manager still bears the liability for damages to

C. The standard terms and conditions for automobile insurance do not apply to cases where a lawsuit is brought in determining the payment criteria for insurance money, but apply to general standards for calculation of damages. However, considering the fact that the standard terms and conditions for automobile insurance usually apply between the parties with respect to the transaction using them, and that not only the insured claims insurance money but also the insurer plans to directly compensate the victim who is not a party to the insurance contract after the insured compensated the victim, the "litigation" in this case refers to the lawsuit brought between the victim or the insured and the insurer. Furthermore, it cannot be deemed that the lawsuit brought between the insurer and the insurer was brought against the victim in accordance with the provision for full compensation for expenses incurred in relation to automobile insurance, and then the lawsuit brought against the insurer against the other insurer from the beginning, such as filing a lawsuit against the insurer for indemnity against the other insurer.

Therefore, when a pre-management company filed a lawsuit seeking reimbursement against a post-management company, the provision on full compensation for medical expenses under the standard terms and conditions for automobile insurance still does not exclude. As such, if the pre-management company has to pay the full amount of medical expenses to the victim within the coverage regardless of the degree of negligence on the victim himself/herself or the victim, regardless of the degree of negligence on the part of the victim, the pre-management company would not refuse to pay the full amount of medical expenses to the victim under the provision on full compensation for medical expenses, even if the pre-management company did not comply with the procedure or method

D. We examine this case in light of the legal principles as seen earlier.

In the accident of this case, according to the individual application principle of the insured, the defendant is still liable for damages to the non-party 3, the victim, who is the non-party 1, who is the non-party 3. In addition, since 168,512,010 out of the damages paid by the plaintiff to the non-party 3 is based on the provision on the total amount compensation for medical treatment expenses under the automobile insurance clause, even if the plaintiff did not follow the procedure or method prescribed in the provision of this case while paying the above money, the successor cannot refuse to pay the compensation amount.

Therefore, the lower court erred by misapprehending the legal doctrine on the scope of application of the instant provision, thereby adversely affecting the conclusion of the judgment, with regard to determining that the instant provision applies to the instant accident. The allegation contained in the grounds of appeal on this point is with merit

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and 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 on the bench.

Justices Kim Seon-soo (Presiding Justice)