The duty of care to be taken when the driver of a motor vehicle operating the second line on the 2nd line road of the road along which the median line is installed finds the motor vehicle that is caused by the median line in the opposite direction.

The driver of a motor vehicle operating the second line on the two lanes of the two lanes along which the median line is marked, even though the motor vehicle coming from the opposite direction observed the center line in order to overtake the motor vehicle in front of the horizontal distance, such motor vehicle is anticipated to pass along the first line on the opposite side of the road, barring special circumstances. Therefore, it is difficult to view that the motor vehicle has a duty of care to drive the motor vehicle along the edge of the road or to reduce speed by driving the motor vehicle along the second line beyond the first line on the opposite direction.

Article 750 of the Civil Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jae-soo et al., Counsel for plaintiff-appellant)

Plaintiff 1 and seven others, Counsel for the defendant-appellant-ho

Defendant 1 and one other, Counsel for the defendant Kim Jong-hwan et al., Counsel for the defendant-appellant

Busan High Court Decision 91Na6054 delivered on June 4, 1992

The part of the judgment of the court below against the defendant 2 shall be reversed, and that part of the case shall be remanded to Busan High Court.

The appeal by Defendant 1 is dismissed, and all costs of appeal against this part are assessed against the same Defendant.

1. Defendant 1’s attorney’s grounds of appeal are examined.

Even if the victim was in the position of enjoying profits from the operation of the motor vehicle without compensation to the motor vehicle in the traffic accident, it cannot be used as a reason to reduce the offender's liability, barring special circumstances. However, the amount of compensation can be reduced only when it is deemed unreasonable in light of the principle of good faith or the principle of equity to impose liability like a general traffic accident on the perpetrator in light of all the circumstances, such as the purpose of operation, the identity relationship between the passenger and the operator, and the situation of the victim's getting on the motor vehicle. As duly determined by the court below, if the purpose of operation of the motor vehicle was to assist the defendant 1's company's business and it was for the plaintiff 1 to take on the vehicle's own interest by the defendant 1's recommendation, the amount of compensation for the above defendant cannot be reduced.

The judgment of the court below to the same purport is just and there is no violation of law as the theory of lawsuit.

In addition, the judgment of the court below is just and there is no error of law such as the theory of lawsuit against the above defendant's fault-off defense that the above plaintiff was accompanied by the vehicle operated by the above defendant, and that the above defendant did not have an obligation to call attention to safe driving.

There is no reason for the incomplete hearing and the argument for violation of the rules of evidence.

2. We examine Defendant 2’s ground of appeal No. 1.

원심판결 이유에 의하면 원심은 그 거시증거에 의하여 피고 1은 1989.5.31. 23 : 40경 자신의 소유인 (차량번호 1 생략) 포니2 승용차를 운전하여 창원시 팔용동 소재 해안도로 커브길을 창원방면에서 마산방면을 향하여 시속 약 50킬로미터의 속도로 진행하게 되었는바, 당시는 야간이고 그곳은 커브길이므로 속도를 줄이고 자기의 차선을 지켜 안전하게 진행하여야 하는데도 이를 어기고 중앙선을 침범하여 진행하다가 위 차의 앞 범퍼부분으로 때마침 반대편 마산방면에서 창원방면을 향하여 마주 오던 피고 2 소유운전의 (차량번호 2 생략) 프레스토 승용차의 우측 조수석 부분을 들이받아 그 충격으로 위 포니2승용차에 타고 있던 원고 1로 하여금 우상단골간부골정상 등을 입게 한 사실을 인정한 다음, 피고들은 각 자동차손해배상보장법 제3조 소정의 자기를 위하여 자동차를 운행하는 자로서 연대하여 그 운행중 일으킨 이 사건 사고로 인하여 위 원고 및 그 가족인 나머지 원고들이 입은 모든 손해를 배상할 책임이 있다고 판단하고, 나아가 피고 2의 면책주장에 대하여, 앞서 든 증거들에 의하면 이 사건 사고장소는 위 프레스토 승용차가 진행하는 방향에서 보아 왼쪽으로 완만하게 구부러진 편도 2차선(왕복 4차선)의 도로로서 그 오른쪽에는 약 3.5미터 폭의 인도가 있고 그 왼쪽에는 암벽과 산이 있는바, 이 사건 사고 당시 피고 2는 도로 2차선으로 진행하면서 위 포니승용차가 앞서가는 다른 차를 추월하여 중앙선을 침범하여 진행해 오는 것을 수백미터 전방에서 발견하였으므로 충돌을 피할 시간적, 공간적 여유가 있었음에도 단순히 전조등을 수차례 깜박거려 경고만 주었을 뿐 길 가장자리로 피행하거나 속도를 줄이는 등 충돌방지를 위한 적절한 조치를 전혀 취하지 아니한 과실이 있고, 이와 같이 대향차선을 마주보고 진행하는 차량의 운전자로서 필요한 충돌방지조치를 다하지 못한 과실은 이 사건 사고발생이나 손해확대의 한 원인이 되었다 할 것이므로 피고 2의 위 면책주장은 그 이유 없다고 판단하여 이를 배척하였다.

However, even if the driver of a motor vehicle operating the second line on the side of the second line along which the median line is marked, he/she is anticipated to pass the second line to the second line on the opposite direction, barring special circumstances, even if the motor vehicle coming from the opposite direction observed the second line in order to overtake the latter, the motor vehicle is likely to pass to the first line on the opposite side of the road. Therefore, it is difficult to see that the motor vehicle has a duty of care to pass to the second line on the side of the road because it is anticipated that it would go to the second line beyond the first line on the opposite direction and go to the second line on the opposite direction.

As recognized by the court below in this case, if Defendant 2 was driving on the second line on the road, even if Defendant 1’s vehicle, which was mast in front of the horizontal distance, was witnessing the center line in order to overtake the vehicle ahead, barring special circumstances, it is anticipated that Defendant 2 might avoid a collision with Defendant 2’s vehicle operating the second line by passing it through the first line on the road operated by Defendant 2, barring any special circumstances. Thus, it cannot be deemed that Defendant 2 had a duty of care to operate the said vehicle by predicting Defendant 1 to enter his direction toward the second line.

The lower court should have determined whether Defendant 1’s vehicle invadeds on the central line and entered the main line of the opposite direction that Defendant 2 operated by Defendant 2, and then intrudes on the secondary line. In addition, the lower court should have determined whether Defendant 2 could have avoided the collision if Defendant 2 discovered the intrusion at that point and immediately withdrawn the action to avoid the collision.

The court below's decision without examining the above points above is erroneous in the misapprehension of law which affected the conclusion of the judgment through incomplete deliberation in the recognition of negligence. Therefore, it is reasonable to point out this error.

3. Therefore, without further proceeding to decide on the remaining grounds of appeal by Defendant 2 by Defendant 2, the same part of the judgment below against the same Defendant is reversed and remanded, and the appeal by Defendant 1 is dismissed, and the costs of appeal by this part are assessed against the losing party. It is so decided as per Disposition by the assent of