[1] Requirements for exercising the insurer's subrogation right under Article 682 of the Commercial Code against the employer on the ground of the use relation

[2] In a case where an insurance company which has paid insurance money to the victim for a traffic accident caused by a cause attributable to an employee claims subrogation of the insurer under Article 682 of the Commercial Act on the ground of an employment relationship, the case holding that it is difficult for the employer to consider that the employer has contributed independently to the occurrence of the accident

[1] In order to exercise the insurer subrogation under Article 682 of the Commercial Code against the employer on the ground of the employment relationship, at least there should be circumstances such as where, in order for the employer to exercise the insurer subrogation against the employee, the employer independently contributed to the occurrence of damages by his own act, such as ordering, managing, and supervising the employee's act, or significantly neglecting the direction and supervision of the employee to the extent that it can be seen as identical to the act in the occurrence of damages (in

[2] In a case where an insurance company that has paid insurance money to the victim for a traffic accident caused by a cause attributable to an employee claims subrogation of the insurer under Article 682 of the Commercial Act on the ground of an employment relationship, the case holding that it is difficult for the employer to be deemed that the employer has contributed independently to the occurrence of the accident

[1] Article 682 of the Commercial Code / [2] Article 682 of the Commercial Code

[1] Supreme Court en banc Decision 91Da33070 delivered on June 23, 1992 (Gong1992, 2235) Supreme Court Decision 95Da48728 delivered on March 14, 1997 (Gong1997Sang, 1074) Supreme Court Decision 2001Da44659 Delivered on November 27, 2001 (Gong2002Sang, 156)

M&D Co., Ltd. (Attorney Jeong Chang-chul, Counsel for the plaintiff-appellant)

Defendant Co., Ltd. (Law Firm Jeong, Attorneys Yellow-soo et al., Counsel for the defendant-appellant)

Busan District Court Decision 2008Gadan197 Decided October 28, 2008

March 24, 2009

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance is revoked. The defendant shall pay to the plaintiff 31,960,645 won with 5% interest per annum from March 28, 2008 to the date the judgment of the first instance is rendered and 20% interest per annum from the next day to the date of full payment (the plaintiff claims payment of interest from September 15, 2007 to the purport of the appeal, but this seems to be a clerical error in the register of March 28, 2008).

1. Basic facts

The following facts are not disputed between the parties, or may be acknowledged by taking into account the whole purport of the pleadings in each description or image of Gap evidence 1 to 3, Gap evidence 4-1, 2, Gap evidence 5, 6, Gap evidence 7-1 to 5, Eul evidence 1-1 and Eul evidence 2.

A. On April 27, 2004, the Plaintiff, an insurer engaged in various insurance business, such as automobile insurance business, concluded a comprehensive insurance contract for business cars (hereinafter “instant insurance contract”) with Nonparty 1 on April 27, 2004 with respect to the insurance period as to the (vehicle No. 1 omitted) passenger cars (hereinafter “instant passenger cars”).

B. The Defendant is a company that engages in general waste treatment, collection, and transportation business.

C. On January 15, 2005, Nonparty 2, a driver affiliated with the Defendant, driving a cleaning service vehicle (vehicle No. 2 omitted) owned by the Defendant (hereinafter “instant cleaning vehicle”), was parked in the training site located in the Busan Southern-gu Busan-dong Busan-dong, which is adjacent to his house, while leaving the cleaning vehicle on January 15, 2005.

D. On January 16, 2005, at around 09:50, Nonparty 2 lent the instant van from Nonparty 1, one of his punishment, to the said assigned elementary school playground. Nonparty 2, who was driving the said van in the said playground, caused the error that Nonparty 3, who was seated and was playing in the said playground, did not safely drive by checking well the right and the right and the right of the front from among the quihings of the said playground, thereby causing the injury to Nonparty 3, by getting the head part of Nonparty 3, who was seated and playing in the said playground, with the front wheels of the left side of the said knife, and causing the injury of Nonparty 3, such as double alleys, cerebral cerebrs, etc. (hereinafter “instant accident”).

E. On July 12, 2007, Nonparty 3 and his family members filed a claim for damages against the Plaintiff, the insurer of the instant passenger vehicle, Busan District Court Decision 2006Da76138, which ordered the Plaintiff to pay all Nonparty 3, etc. KRW 518,319,054 and damages incurred therefrom, which became final and conclusive.

F. By March 27, 2008, the Plaintiff paid KRW 663,921,291 in total with insurance proceeds to Nonparty 3, etc.

2. The plaintiff's assertion

In order to check the condition of cleaning vehicles in this case parked as of the day immediately preceding the accident, Nonparty 2 caused the accident in this case while driving the instant passenger vehicle and parking the said cleaning vehicle. Since Nonparty 2 was an accident in which Nonparty 2 was engaged in preparation for the execution of the Defendant’s affairs, Nonparty 2, the user of Nonparty 2, who was exempted from the Defendant by paying insurance money to Nonparty 3, etc., is obligated to pay the Plaintiff the amount of indemnity based on subrogation, equivalent to 50% of the Defendant’s liability ratio, 31,960,645 won, and delay damages.

3. Determination

A. Whether the defendant constitutes a third party under Article 682 of the Commercial Act

(1) Under Article 682 of the Commercial Act, in order for the insurer to exercise the rights of the policyholder or the insured against a third party, the damage must be caused by the act of the third party, and in this case, the third party shall be a person other than the insured. Thus, if the insurance clause provides that the insured is the person who uses or manages the motor vehicle with the consent of the named insured, other than the named insured, and the person who is operating the insured motor vehicle (including the driver) for each of the insured, if the insured is designated as the insured, the insurer may not acquire the right of the insurer in accordance with the legal principle of subrogation if the insured event occurred due to such act as the named insured (see Supreme Court Decision 201Da44659, Nov. 27, 2001).

(2) As to whether the Defendant is an insured person under the insurance contract of this case, the term "the consent" here means an expression of intent to temporarily use an insured automobile to a third party on the premise of possibility of return without reserving the right to own and dispose of it. The expression of consent does not necessarily need to be explicitly or individually, but it is possible to implied or comprehensive consent, barring special circumstances, the insured's direct consent is required, and the person who has obtained the consent again does not constitute the insured person under the consent (see Supreme Court Decision 95Da48728, Mar. 14, 1997, etc.). The term "use or management of the insured vehicle" does not necessarily mean only the case where the insured vehicle is actually used or managed, but also includes cases where it can be seen that there is control over the insured vehicle under the social norms.

In light of the aforementioned facts and the following circumstances, the Defendant’s direct and specific direction and supervision authority related to the operation of the insured motor vehicle is exercised by the owner or holder of the motor vehicle, inasmuch as the subject of direction and supervision by the Defendant is Nonparty 2, who is an employee, and is not an insured motor vehicle directly granted by Nonparty 1 the right to use or manage the insured motor vehicle, in light of the aforementioned legal principles: (a) the subject of direction and supervision by the Defendant is not an insured motor vehicle operated individually by himself; (b) whether the employee properly complies with the work rules; and (c) whether the employee is performing his duties in accordance with the direction by the employer at the work site; and (d) when, how and how the insured motor vehicle should be operated for any purpose, it is difficult to deem that the Defendant has control or control the insured motor vehicle; and (c) the Defendant does not have been directly granted the right to use or manage the insured motor vehicle from Nonparty 1. Therefore, the Defendant cannot be deemed to fall under the consenting insured worker as provided

B. Whether the defendant is liable for subrogation

(1) Whether an employee's act can be deemed as an employer's act

In a case where the defendant is a third party under Article 682 of the Commercial Act, prior to considering whether the defendant is in the status of the employer of the non-party 2, and whether the non-party 2's act of driving in this case is recognized as related to the execution of the defendant's business and the defendant bears an employer's responsibility, the defendant's act in subrogation of the insurer under Article 682 of the Commercial Act can be immediately

Article 682 of the Commercial Act provides that an insurer shall be held liable if the loss occurred due to an act committed by a third party, not the case where the third party is liable for the loss. The employer’s negligence in the employer’s liability does not require the negligence of an employee’s harmful act. Thus, the employer’s liability is an alternative liability legally recognized apart from the employee’s liability for damages (see, e.g., Supreme Court Decision 91Da33070, Jun. 23, 1992). Meanwhile, it is intended to expand the scope of the insurer’s liability for damages to protect the insured and the victim. However, if an insurance accident occurred due to the industrial structure and technology as part of an enterprise’s business, many employees are bound to engage in the high risk of the occurrence of the accident, such as automobile operation, as part of the employee’s business, and thus, an employer’s liability for damages cannot be acknowledged as an employee’s liability for damages even if the employee’s liability for damages was exposed to the risk of the occurrence of the accident.

Therefore, in full view of the language and text of Article 682 of the Commercial Act and the above circumstances, even if an employer is not included in the insured and constitutes a third party under Article 682 of the Commercial Act, it is difficult to deem that the employer’s act of an employee is immediately deemed to conform to the purport of Article 682 of the Commercial Act or the intent of subrogation of the insurer, regardless of whether the employer’s act contributes to the loss caused by an insured event, solely on the circumstance that the employer is in the position of the employer. In this regard, in order to recognize subrogation of the insurer under Article 682 of the Commercial Act by the employer on the ground of the use relation, at least the extent of circumstances such as the employer’s involvement in the loss caused by the act of the employee, and the direction and supervision of the employee to the extent that it can be deemed identical to the act of the employee, such as the direction and supervision of the employee, should be deemed to have been significantly neglected (in

(2) Whether the insurer's subrogation right against the defendant is established

Examining the facts acknowledged above in light of the above legal principles, the defendant is only the employer of the non-party 2, and it is difficult to view that the defendant contributed independently to the accident of this case separately from the act of the non-party 2, and there is no other evidence to acknowledge it. Thus, the plaintiff's assertion premised on the fact that the defendant can exercise the insurer's subrogation right under Article 682 of the Commercial Act against the

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as it is without merit, and it is so decided as per Disposition.

Judges Lee Young-young (Presiding Judge)