In a case where the owner of a vehicle damaged by a traffic accident: (a) entered the damaged vehicle into the service center for repair; (b) leased and used a vehicle of the same kind as the damaged vehicle; and (c) claimed the insurer of the damaged vehicle for payment of the lending and borrowing expenses for the period of use by the insurance company; and (c) Company B paid the lending and borrowing expenses only for the period determined by the insurance contract terms and conditions payment standards, the case holding that the Company B is liable to pay the lending and borrowing expenses for the “the period from

In a case where the owner of a vehicle damaged by a traffic accident entered the damaged vehicle into the service center for repair, used the same kind of vehicle as the damaged vehicle for lease and claim for the payment of the loan expense for the period of use by the insurance company Eul, which is the insurer of the damaged vehicle, and Eul paid the loan expense only for the period determined by the standard for the payment of the loan expense under the insurance terms and conditions, the case holding that the term "the period from the actual commencement of repair to the date of delivery after completion of repair" constitutes the lending and borrowing period, which is the ordinary period necessary for the repair of the damaged vehicle, and as long as Eul concurrently takes over the damage liability of the perpetrator Gap who is the insured, it cannot be deemed that the scope of the obligation of Eul is limited to the standard for the payment of the loan expense under the insurance terms and conditions, and therefore the above lending period

Articles 393, 454, and 750 of the Civil Act; Articles 719 and 724(2) of the Commercial Act

Plaintiff

Samsung Fire & Marine Insurance Co., Ltd. (Attorney Yoon Jong-dae, Counsel for defendant-appellant)

Busan District Court Decision 2015Na6737 decided September 4, 2015

March 24, 2016

1. Of the judgment of the court of first instance, the part against the defendant in excess of the amount ordered to be paid below is revoked, and the plaintiff's claim corresponding to the revoked part is dismissed. The defendant shall pay to the plaintiff 772,200 won with 5% interest per annum from March 21, 2015 to April 21, 2016 and 20% interest per annum from the next day to the date of full payment.

2. The defendant's remaining appeal is dismissed.

3. One-fifth of the total costs of litigation shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

1. Purport of claim

The defendant shall pay to the plaintiff 1,016,40 won with 20% interest per annum from the day following the delivery of a copy of the complaint of this case to the day of complete payment.

2. Purport of appeal

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

1. Basic facts

A. On the road located in Daegu-gun District, on December 8, 2014, the Plaintiff conflicts with the (vehicle No. 1 omitted) automobiles (vehicle No. 2 omitted) that run on the opposite lane while driving (hereinafter “victims”) 5 automobiles owned by the Plaintiff on the road located in Daegu-gun District (hereinafter “instant accident”).

B. The Defendant is an insurer who has entered into a comprehensive automobile insurance contract with the owner of a household (hereinafter “instant insurance contract”).

C. From December 9, 2014 to February 2, 2015, the day following the instant accident (total 56 days) the Plaintiff entered and repaired the damaged vehicle to the Korea MM North Daegu Service Center. During the said repair period, the Plaintiff leased and used KS5 automobiles of the same kind as the damaged vehicle from the central siren for 41 days during the said repair period.

D. Meanwhile, the terms and conditions of the instant insurance contract stipulate the period of recognition among the lending costs as follows.

(1) In the case of repair under paragraph (1) for a period of 3. Lending and borrowing fee, which is included in the Schedule entry in the main sentence: 10 days; (2) in the case of repair not being acceptable within the limit of 30 days;

E. The Defendant paid KRW 6,700,040 of the repair cost and KRW 2,574,00 of the loan cost with respect to the instant accident.

[Reasons for Recognition] Unsatisfy, Gap evidence 1, 2, Eul evidence 1 and 2, the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff

Although the Defendant, as an insurer of a household vehicle, is liable for compensating the Plaintiff for the damages incurred by the Plaintiff as a result of the instant loss, the Defendant did not pay to the Plaintiff KRW 1,016,400 for 11-day lending and borrowing expenses (i.e., daily lending and borrowing charges of KRW 132,00 x 11 days x 70% for the ordinary industry) from January 22, 2015 to February 2, 2015.

Therefore, the defendant is obligated to pay to the plaintiff the above-paid loan cost of KRW 1,016,400 and damages for delay.

B. Defendant

The terms and conditions of the instant insurance contract explicitly stipulate that “where repair is possible, the period shall be the period until the completion of the repair, but shall not exceed 30 days” with respect to the payment standards of the lending cost. The lending and borrowing expenses that the Defendant is liable for to the Plaintiff shall be limited to its scope, and the lending and borrowing expenses exceeding the above 30-day period shall be treated as “special damage.”

The Defendant has already disbursed 2,574,000 won (i.e., daily lending fee of 132,00 won x 30 days x 65% of the discount rate in the ordinary industry) in accordance with the above payment criteria, and thus, there is no additional payment to the Plaintiff.

3. Determination

A. Determination on the cause of the claim

1) Relevant legal principles

In a case where a victim claims expenses incurred in borrowing and lending another motor vehicle of the same class and class for a certain period of time due to damage caused by an accident against the perpetrator or insurer as compensation for damage or mutual aid, not only need to lend and borrowing the relevant motor vehicle, but also the amount of the loan expense may be reasonable. If there is a dispute between the parties as to the necessity of lending and lending and the reasonableness of the amount of the loan expense, the party concerned is the victim who borrowed and purchased the motor vehicle (see Supreme Court Decision 2012Da67399, Feb. 15, 2013). In addition, it is reasonable to deem that lending expenses within the scope of necessity and reasonableness as ordinarily damaged by the absence of means of movement following the repair of the motor vehicle.

2) Determination on the cost of lending and borrowing per day

In light of the following circumstances, the cost of borrowing and lending of a motor vehicle is ordinary charges required for leasing the same kind of motor vehicle in the case of the type of motor vehicle that can be used as a substitute for the accident. In addition to the overall purport of the arguments, the following circumstances, i.e., (i) the Plaintiff’s rent prior to the discount of k5 motor vehicle leased from the central siren after the accident of this case, is without dispute between the parties; (ii) the manufacturer of a motor vehicle who owns a nationwide business network generally rents a motor vehicle with the rate of 30 to 40% at the reported rate of 30 to 40%; (iii) the Plaintiff and the Defendant’s respective discount rate of 70% (Plaintiff: 65%; Defendant 70%); (iv) the Plaintiff has applied discount rate of 65% with the rate of 65% and 30% with the total discount rate of 2,50% per day x 30% per day before the rent of this case x 30% per day (60% per day).

3) Determination as to the lending period

Unless there are special circumstances, it is reasonable to determine the lending period only within the ordinary period necessary for the repair of the damaged vehicle. According to the evidence mentioned above and the fact-finding conducted by the Korea MM Daegu Service Center in the original instance court on December 9, 2014, the damaged vehicle entered the Korea MM North Daegu Service Center on the day following the instant accident. However, the repair was commenced on December 26, 2014 due to the delay in agreement between the Plaintiff and the Defendant, etc., and the damaged vehicle was released on February 2, 2015, 26 days for the actual repair period of the damaged vehicle, and 39 days for a holiday is recognized.

Therefore, according to the above facts, it is reasonable to view that the period of 39 days (including holidays) is necessary for the repair of damaged vehicles, unless there is any reflective document.

There may be a question as to whether it is reasonable to include the period of holidays. However, in light of the fact that the Plaintiff actually received a damaged vehicle that was repaired on February 2, 2015, as seen earlier, and the fact that the Plaintiff cannot demand the Korea MM North Daegu Western Down Down Down Down Down Down Down without additional expenses in light of the reality of ordinary commercial transactions, the Plaintiff cannot demand the repair of the damaged vehicle even on holidays, unlike other damaged vehicles. In light of the fact that the repair of the damaged vehicle was actually commenced until the completion of repair, it is reasonable to interpret that the period included in the period of holidays is included in the period required for ordinary repair.

4) Sub-determination

Therefore, barring special circumstances, the Defendant is obligated to pay 772,200 won (i.e., daily loan expense of 85,800 won x 9 days) and to pay damages for delay calculated at each rate of 20% per annum under the Civil Act until April 21, 2016, which is the date the judgment of the competent court rendered that it is reasonable for the Defendant to dispute as to the existence or scope of the obligation to perform the obligation from March 21, 2015, following the delivery of a copy of the complaint of this case sought by the Plaintiff to the Plaintiff.

B. Judgment on the defendant's argument

However, the legal nature of the victim’s direct right to claim under Article 724(2) of the Commercial Act is that the insurer concurrently takes over the insured’s obligation to compensate for damages against the victim, and the victim is a claim for damages against the insurer, and the insured’s right to claim for damages against the insurer is not a right corresponding thereto (see Supreme Court Decision 98Da54397, Jun. 9, 200). Accordingly, in calculating the amount of damages that the insurance company should compensate, the court is not bound by the standards for payment under the terms and conditions of automobile insurance (see Supreme Court Decision 94Da6819, May 27, 1994).

In accordance with the above legal principles, although the terms and conditions of the insurance contract of this case provide that "where repair is possible, the period shall be until the completion of the repair, and shall be limited to 30 days" in relation to the payment standards for the lending and borrowing expenses, it shall not be deemed that the scope of the obligation of the defendant is limited because the defendant concurrently takes over the liability of the insured for damages against the plaintiff of the insured (insured), unless he/she concurrently takes over the liability of compensation against the plaintiff of the insured.

In addition, the expenses of lending and borrowing within the scope of the necessity of lending and borrowing and the reasonableness of the amount of borrowing and lending expenses are damages suffered by the victim due to the absence of mobility means following the repair of the vehicle, which constitute ordinary damages.

Therefore, the defendant's argument that the loan cost that the defendant should pay to the plaintiff should be limited to 30 days as stipulated in the terms and conditions of the insurance contract of this case, and that the loan cost exceeding the above period should be deemed special damage is not accepted.

4. Conclusion

Therefore, the plaintiff's claim of this case is justified within the above scope of recognition, and the remaining claims are dismissed as it is without merit. Since the part against the defendant who ordered payment in excess of the above recognized amount among the judgment of the court of first instance which partially different conclusions is unfair, it is revoked and the plaintiff's claim corresponding to the revoked part is dismissed, and the defendant's remaining appeal is dismissed as it is without merit. It is so decided as per Disposition.

Judges Permitted (Presiding Judge)