Inasmuch as the Plaintiff is a minor, the father of parental authority and the non-party 1 (Non-party) (Law Firm Cho & Kim, Attorney Cho Jae-chul, Counsel for the plaintiff-appellant)

Music Insurance Co., Ltd. (Law Firm Hanmun, Attorney Kim Jong-soo, Counsel for the plaintiff-appellant)

October 1, 2015

Seoul Central District Court Decision 2012Gadan140889 Decided August 28, 2014

1. The part against the plaintiff in the judgment of the court of first instance shall be revoked.

2. The plaintiff's claim (including the part extended from the trial) is dismissed.

3. The plaintiff is responsible for total costs of litigation between the plaintiff and the defendant.

1. Purport of claim

The defendant shall pay to the plaintiff 120,000,000 won with 5% interest per annum from March 25, 2006 to the date of the first instance judgment, and 20% interest per annum from the next day to the date of full payment (the plaintiff extended its claim to the court of first instance).

2. Purport of appeal

The same shall apply to the order.

1. Basic facts

A. The Plaintiff (vehicle No. 1 omitted) is an insurer who has entered into a comprehensive automobile insurance contract with Nonparty 1 as to the damaged vehicle, which is a driver of the A-H test car (hereinafter “victim”). The Defendant is an insurer who entered into an automobile insurance contract with Nonparty 1.

나. 소외 2는 2006. 3. 25. 19:05경 (차량번호 2 생략) 뉴클릭 승용차(이하 ‘가해 차량’이라 한다)을 운전하여 전남 보성군 벌교읍 고읍리 소재 지동마을 입구 ‘ㅏ’자형 삼거리 교차로를 낙성 방면에서 벌교 방면으로 진행하던 중, 때마침 지동마을로 들어가기 위해 좌회전하다가 진입로에 들어가지 못하는 바람에 비상등을 켠 채 정차중이던 피해 차량의 조수석 뒤 문짝 부분을 가해 차량 앞범퍼 부분으로 들이받았고(이하 ‘이 사건 사고’라 한다), 그로 인하여 피해 차량 뒷좌석에 탑승하고 있던 원고가 피해 차량 밖으로 튕겨나가 도로 위에 떨어지면서 머리 부위 등을 부딪혀 머리 내 열린 상처가 없는 외상성 경막하출혈 등의 상해를 입었다.

C. The Defendant’s comprehensive motor vehicle insurance clause provides that the insured or his parents, spouse, or children are not liable to pay insurance proceeds in excess of the scope of personal compensation I (liability insurance) if they die or die.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 3, 7, 8, Eul evidence Nos. 1, 5 and 6, the purport of the whole pleadings

2. Whether liability for damages arises;

A. Determination on the cause of the claim

According to the above facts, unless there are other special circumstances, the defendant is liable to compensate for the damages suffered by the plaintiff due to the accident in this case within the limit of the personal compensation I (liability insurance) as the insurer of the damaged vehicle.

B. Defendant’s defense and judgment

1) In calculating the liability insurance amount to be paid by the Defendant, the Defendant and Nonparty 1’s negligence, the Plaintiff’s father, should be considered as the Plaintiff’s negligence. On March 28, 2012, the Plaintiff asserted that, by receiving the payment of KRW 325,00,000 from the Dongbu Fire Marine Insurance Co., Ltd. (hereinafter “Dongbu Fire”), the insurer of the vehicle operating on March 28, 2012, the Plaintiff was entitled to full compensation for damages after deducting the Plaintiff’s fault portion, including the above Nonparty 1’s negligence.

If the passenger claims compensation against the operator of the passenger vehicle, the driver's negligence only falls under the requirements for the establishment of the damage liability of the operator of the passenger vehicle (see Supreme Court Decision 97Da35344 delivered on November 14, 1997) and is not of the nature to be taken into account as the fault of the victim (see Supreme Court Decision 97Da35344 delivered on November 14, 1997). In calculating the defendant's liability jointly acquired the damage liability of the non-party 1, the non-party 1's negligence cannot be assessed as the fault of the plaintiff who is the passenger. Accordingly, the defendant's defense on a different premise is without merit without further review.

2) The defendant defense that the plaintiff's right to claim damages has expired three years since the date of the accident of this case.

On the other hand, under Article 724(2) of the Commercial Act, the victim's direct right to claim against the insurer under Article 724(2) of the Commercial Act is an insurer who concurrently takes over the insured's obligation to compensate for damages against the insurer and the victim has a right to claim damages against the insurer. Thus, if the victim or his/her legal representative does not exercise it for three years from the date he/she became aware of the damage and the perpetrator (see Supreme Court Decision 2003Da6774, Oct. 7, 2005, etc.). The plaintiff was aware of the damage caused by the accident of this case and the perpetrator on March 25, 2006. Since there was no dispute over the plaintiff's claim for damages including the amount of liability insurance against the defendant on March 21, 2012, the plaintiff's right to claim damages expired after the expiration of the prescription.

As to this, the Plaintiff asserted to the effect that prescription will run from March 28, 2012, when the Plaintiff became objectively able to know the occurrence of a claim against the Defendant by receiving insurance money from a pre-paid fire, the pre-paid worker, but it is difficult to view that there was an objective difficult situation in which the circumstance of the instant accident was apparent and the cause of the direct claim against the Defendant occurred, and there is no other evidence to acknowledge it. Thus, the Plaintiff’s above assertion is rejected.

C. The plaintiff's second defense and judgment

1) On March 26, 2012, the Plaintiff stated that Nonparty 3, an employee of the Defendant, should complete an agreement on fire and damage compensation and submit relevant documents, and thereafter, the Plaintiff would pay the Plaintiff’s insurance money and liability insurance money for the self-physical accident. Accordingly, the Defendant asserts that the Defendant gave up the prescription benefit to the Plaintiff.

On the other hand, the statement of evidence No. 9 alone is insufficient to acknowledge the fact that Nonparty 3 made the above statements, and there is no other evidence. Meanwhile, according to the statement No. 4, the defendant may recognize the fact that the defendant paid KRW 31,500,000 insurance money of his own physical accident to Nonparty 1 who represented the plaintiff on May 7, 2012. However, in full view of the purport of the oral argument in the statement No. 3 and No. 7, the defendant filed a lawsuit claiming the payment of insurance money of his own physical accident and liability insurance money on March 30, 2012 against the plaintiff on the grounds that the defendant filed a lawsuit seeking confirmation of non-existence of insurance money liability with the Gwangju District Court No. 2012Ga5074, 5074, the defendant cannot be viewed as having made an implied recommendation to the Financial Supervisory Service that he paid insurance money of his own physical accident to the plaintiff on the ground that the defendant did not have any other reasons to acknowledge that the defendant paid insurance money of his own physical accident to the plaintiff on the above ground that he had not been found to be liable.

2) In addition, on April 2007, the Plaintiff asked Nonparty 1, his father, and Nonparty 4’s non-party 1, who received the insurance money for his own physical accident, to the effect that “the Plaintiff would claim the insurance money for his own physical accident later because the Plaintiff is still under treatment.” Nonparty 5, who is an employee of the Defendant, responded to the purport that “In principle, it is possible to pay the insurance money for his own physical accident upon the completion of the agreement with the insurance company of the vehicle in question, and Non-party 3 and Non-party 1 of the Defendant, who is the employee of the Defendant.” The Defendant’s defense of extinctive prescription is alleged to the effect that it goes against the principle of good faith, but it is insufficient to acknowledge it only by the statement of evidence No. 9, and there is no other evidence.

D. Sub-committee

Therefore, the plaintiff's right to claim damages against the defendant is already completed and extinguished before the lawsuit of this case is filed. Thus, the defendant's defense pointing this out is with merit, and the plaintiff's claim is without merit without examining further.

4. Conclusion

Therefore, the plaintiff's claim is dismissed, and since the part against the plaintiff in the judgment of the court of first instance is unfair with different conclusions, the plaintiff's claim including the extended part in the trial is dismissed, and it is so decided as per Disposition.

Judges Dohee (Presiding Judge) Lee Jae-chul