(영문) 서울중앙지방법원 2018.9.13. 선고 2018나5682 판결

The defendant shall pay to the plaintiff 6,20,000 won with 5% interest per annum from May 30, 2017 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 complete payment.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

Reasons

1. Basic facts

A. The Plaintiff is an insurer who has concluded an automobile insurance contract with respect to C vehicles owned by B (hereinafter referred to as “Plaintiff vehicle”).

B. On March 7, 2017, at around 22:50, the Plaintiff’s vehicle was driven by a driver of the Plaintiff’s vehicle and driving the Plaintiff’s exclusive road adjacent to the Namyang-si, Namyang-si, Gyeonggi-do along a two-lane in the direction of whether it is a horizontal body in Seoul, and the Defendant, while under the influence of alcohol, crossing the Plaintiff without permission beyond the median zone, caused a traffic accident that causes damage to the left side of the Plaintiff’s vehicle and the driver’s length (hereinafter “the instant accident”).

C. On May 29, 2017, with respect to the instant accident, the Plaintiff paid insurance money equivalent to KRW 6,220,000 (excluding KRW 200,000 on its own charges) at the repair cost of the Plaintiff’s vehicle.

【Ground of recognition】 The fact that there has been no dispute, each entry of Gap's 1 through 6 (including virtual number), and the purport of whole pleadings

2. Summary of the parties' arguments

A. The plaintiff's assertion

The accident of this case occurred due to the Defendant’s fault, which illegally crossed over the central separation zone, on the motorway where pedestrians are prohibited from crossing. Thus, the Defendant is obliged to pay the Plaintiff, who subrogatedly acquired the damage claim of the insured by paying the insurance proceeds from the accident of this case, the amount of reimbursement equivalent to the automobile repair cost, KRW 6,220,000, and damages for delay.

B. Defendant’s assertion

At the time of the instant accident, in order to move to a safe place by being located on the instant road at the time of the instant accident, the Defendant moved to the Plaintiff’s vehicle at a speed exceeding 80km/h of speed exceeding 40km/h of the Plaintiff’s vehicle while driving the instant road in a safe manner.

Therefore, the Defendant did not make any error that contributed to the occurrence of the instant accident and the expansion of damages, and there is no proximate causal relation between the Plaintiff’s vehicle’s damage and the Defendant’s breach of duty of care. Furthermore, the Defendant’s act of crossing the instant road inevitably due to its location on the road is a need for emergency evacuation and thus, its illegality is excluded.

In addition, even if there was an error that contributed to the Defendant’s occurrence of the instant accident, the Defendant’s liability should be limited to less than 50% in consideration of the foregoing circumstances.

3. Determination

A. Legal doctrine

Article 63 of the Road Traffic Act provides that pedestrians shall not walk or cross the motorway. Thus, barring any special circumstance, a driver of a motor vehicle driving on motorway has no duty of care to drive the motor vehicle while preparing for a pedestrian to stop the motor vehicle in a way that pedestrians would expect to walk or cross the motorway, and therefore, even in cases where a victim who crosses the motorway without permission causes an accident due to shocking the victim, there was a circumstance in which the driver could anticipate such unauthorized crossing in advance from a considerable distance. Accordingly, if the driver was under a measure such as immediately speeding or rapid driving, barring special circumstances such as the occurrence of a collision with the victim, it cannot be deemed that the driver was negligent (see, e.g., Supreme Court Decisions 9Da5135, Apr. 2, 1998; 98Da5135, Jul. 13, 2007; 207Da26240, Jul. 13, 2007).

B. Determination on the instant case

The above facts are as follows, which are acknowledged by considering the overall purport of arguments in Gap evidence Nos. 1, 3, and 4 and the video as a whole, i.e., the defendant: (a) when he was under the influence of alcohol coming to fall down on the motorway near the motorway of this case, which is not the destination while getting on and off a taxi; (b) the driver of the plaintiff vehicle could not have anticipated such abnormal pedestrian traffic; (c) the driver of the plaintiff vehicle could not have discovered the defendant in advance in light of the fact that the accident of this case occurred at night and the defendant conflicts on the left side of the plaintiff vehicle; (c) the accident of this case occurred due to one-way negligence of the defendant who was crossingd at night; and (d) it is reasonable to deem that the accident of this case occurred due to the driver of the plaintiff vehicle without permission, and there is no other evidence to prove that the driver of the plaintiff vehicle could not escape from any special measures such as prompt crossing or collision with the defendant without permission.

In addition, as seen earlier, the Defendant’s act of getting off the taxi at the time of the instant accident and tried to cross the taxi without permission after getting out of the vicinity of the instant road, which is not a destination, under the influence of alcohol, while getting on the taxi at the time of the instant accident. As such, it cannot be said that the illegality of the Defendant’s act constitutes

Furthermore, as to whether the amount of the insurance money paid by the Plaintiff is appropriate, KRW 6,220,00 of the insurance money equivalent to the repair cost paid by the Plaintiff is reasonable in light of health stand, the background of the occurrence of the instant accident, the degree of collision and damage of the vehicle, the repair volume of the vehicle, etc.

Therefore, the Defendant is obligated to pay the Plaintiff the repair cost of the Plaintiff’s vehicle from May 30, 2017 to October 26, 2017, the delivery date of a copy of the complaint of this case, which is the day following the payment date of the insurance money, to the Plaintiff who acquired by subrogation within the scope of the insurance money paid by the Defendant, with 5% per annum under the Civil Act and 15% per annum under the Act on Special Cases concerning Expedition, etc. of Legal Proceedings from the next day to the day of full payment.

4. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted for the reasons of its reasoning, and the judgment of the court of first instance is just, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.