[1] Criteria for determining "operation" under Article 3 of the Guarantee of Automobile Accident Compensation Act

[2] The case holding that in case where an insured driver's illegal stopping of the driver and the subsequent traffic accident are found in a proximate causal relationship between the latter driver's illegal stopping of the insured driver and the latter driver's accident, in case where, after the driver's preceding traffic accident occurred on an expressway, the latter driver sent hand signals to the latter driver at the driver's request

[1] Article 3 of the Guarantee of Automobile Accident Compensation Act / [2] Article 3 of the Guarantee of Automobile Accident Compensation Act, Article 59 subparagraph 1 (see current Article 64 subparagraph 2), Article 2 (see current Article 64 subparagraph 3), Article 61 (see current Article 66) of the former Road Traffic Act, Article 23 (see current Article 40) of the former Enforcement Rule of the Road Traffic Act (wholly amended by Ordinance of the Ministry of Government Administration and Home Affairs No. 329, May 30, 2006)

[1] Supreme Court Decision 97Da24276 delivered on September 30, 1997 (Gong1997Ha, 3281) Supreme Court Decision 2005Da73280 Delivered on April 13, 2006 (Gong2006Sang, 794)

Plaintiff 1 and three others (Attorney Kim-hee, Counsel for the plaintiff-appellant)

[Defendant-Appellee] Insurance Co., Ltd. (Attorney Han Han-soo et al., Counsel for defendant-appellee)

Seoul High Court Decision 2007Na57031 decided January 25, 2008

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

Based on its employed evidence, the court below determined that, at around 21:40 on December 23, 202, the non-party 1 driven the non-party 2's father, the non-party 2, and operated the non-party 1's rocketing II car (hereinafter referred to as the "insured car") on the non-party 1's own right-hand side of the accident, the non-party 3's ESF or other car driving on the non-party 3's front side of the accident, which caused the non-party 1's accident to stop on the non-party 1's right-hand side of the accident, and the non-party 1 continued to stop on the non-party 1's right-hand side while the non-party 1 was driving on the non-party 1's front side of the accident, and it is difficult to get the plaintiff 1 to get the non-party 3's driver to get out of the insured vehicle's front side of the accident.

However, the above judgment of the court below is hard to accept.

Article 3 of the Guarantee of Automobile Accident Compensation Act provides that "a person who operates an automobile for his own sake shall be liable to compensate for damage if he dies or gets injured by another person due to the operation of the automobile." The term "operation" in the above Article shall be determined according to whether a proximate causal relation can be acknowledged between operation and accident (see Supreme Court Decisions 97Da24276 delivered on September 30, 1997; 2005Da73280 delivered on April 13, 2006, etc.).

Meanwhile, according to Article 59 of the former Road Traffic Act (wholly amended by Act No. 7545 of May 31, 2005; hereinafter the same shall apply), a driver of a motor vehicle shall not stop or park, except in special circumstances, such as cases where the motor vehicle stops or parks at a place where a boundary is indicated so that it can stop or park on an expressway or motorway, or where the motor vehicle stops or parks at the edge of a road (including the sideway) due to breakdown or other inevitable reasons, and shall not stop or park, except in cases where there are special circumstances such as cases where the motor vehicle stops or parks at the edge of a road (including the sideway). According to Article 61 of the former Road Traffic Act and Article 23 of the former Enforcement Rule of the Road Traffic Act (wholly amended by the Ordinance of the Ministry of Government Administration and Home Affairs No. 329 of May 30, 206; hereinafter the same shall apply), if it is impossible to drive the motor vehicle on an expressway or motorway due to breakdown or any other cause, install an additional signal or signal at least 5 meters after the road.

Examining the facts acknowledged by the court below in light of the above legal principles, although the non-party 1 is driving the Youngdong Highway at the jurisdiction of the court below and the non-party 1 is driving the Youngdong Highway at the jurisdiction of the Seoul bank, and the non-party 3's EF Station or other car driving the two lanes prior to the accident point at the accident point of this case is moving to one lane, which is one-lane one-lane one, which is one-lane one, in order to avoid this, and also he was driving the road in order to avoid this, and the central separation zone was set off and stopped at one-lane, it cannot stop the vehicle on the expressway under Articles 59 and 61 of the former Road Traffic Act, so it is necessary to immediately move the vehicle to the safe place so that it does not interfere with the passage of other vehicles, but it was left alone merely because the non-party 1 did not request the plaintiff 1 to give sign sign on the rear road, so it can be said that there is a conflict between the non-party 1's vehicle and the vehicle in this case.

Nevertheless, the lower court determined that the instant accident was an accident caused by the operation of the insured vehicle was difficult to be deemed an accident. It erred by misapprehending the legal doctrine on the interpretation of “operation due to operation” under Article 3 of the Guarantee of Automobile Accident Compensation Act.

Therefore, without further proceeding to decide on the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Ji-hyung (Presiding Justice)