Han Lan Insurance Co., Ltd. (Law Firm Kimhae & World, Attorneys Yellow Tae-jin, Counsel for the defendant-appellant)

Defendant

Changwon District Court Decision 2011Gau9137 decided November 17, 2011

August 14, 2012

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 will pay to the plaintiff 2,500,000 won and 20% interest per annum from the next day of service of the original copy of the payment order of this case (the plaintiff stated the base date of damages for delay in the petition of appeal as the service day of the original payment order, but this seems to be a clerical error on the day following the delivery day of the original payment order) to

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 entry in Gap's evidence 1 through 4, Gap's evidence 1 through 5, Gap's evidence 8, 9, and Eul's evidence 3:

A. The Plaintiff is an insurer who entered into an automobile comprehensive insurance contract with Nonparty 1, the Defendant’s wife (vehicle No. 1 omitted) as to the instant vehicle (hereinafter “instant vehicle”). The main contents of the terms and conditions of the said automobile comprehensive insurance contract concluded between the Plaintiff and the Defendant are as follows.

Liability for Damages

2. Scope of the insured;

The scope of the insured shall be as follows:

(1) The insured described in the insurance policy (referred to as the "insured Insured" in this Clause)

(2) A person who, as a relative of the insured, lives or lives together with the insured, uses or manages the insured motor vehicle;

(3) A person who uses or manages insured motor vehicles with the consent of the registered insured: Provided, That in the case of personal compensation II or substitute compensation, a person who runs the business of dealing with motor vehicles, such as automobile maintenance business, parking lot business, oil supply business, detailed car sales business, automobile consignment business, etc. (if his employee and the company are corporations, including its directors and auditors) shall not be considered as the insured if he uses or manages the entrusted motor vehicles.

(4) A person who has obtained the status equivalent to the employer of the named insured under an employment or contract of the named insured; Provided, That this is limited to the time the named insured is being used in the business of the employer.

(5) A person who is driving an insured automobile for the insured as stipulated in the above "(1) through (4) (including a driver): Provided, That in the case of personal compensation I, it refers to the occurrence of the liability of a motor vehicle owner under the Guarantee of Automobile Accident Compensation Act, and in the case of personal compensation II or personal compensation, a person who carries on the business of dealing with motor vehicles such as automobile maintenance business, parking lot business, oil supply business, car leasing business, automobile sales business, automobile consignment business, etc. (in the case of his employees and their directors and auditors, including their directors and auditors) who uses or manages the entrusted insured motor vehicle as the insured.

Matters that are not compensated by an insurance company (exempt matters)

2. Self-charges related to drinking or non-licensed driving;

Where the insured is to pay insurance proceeds due to an accident while driving under influence or driving without a license, the following amount shall be borne by the insured:

In the following cases, the insured shall bear the charge of drunk driving accident (personal injury I/II per accident, 500,000 won, 50,000 won): (a) the insured shall bear the charge of driverless driving accident (personal injury I: 200,000 won per accident, 50,000 won, 50,000 won) or the charge of accident without a driver's license (personal injury I: 200,000 won per accident: 50,000 won, 50,000 won); (b) the insured person shall drive under the influence of alcohol or without a driver's license; (b) the insured person shall, under the explicit or implied approval of the insured, pay without delay to the insurance company; Provided, That if the insured person fails to pay the charge of accident due to economic reasons, etc., the insurance company may first pay it to the insured, including the charge of accident.

B. At around 15:30 on October 8, 2009, the Defendant driven the instant vehicle in the state of drinking alcohol concentration of 0.093%, and proceeded along the way ahead of the mountain road in the city of Geum-gu, Busan along the gold-speed direction from the vegetable side, and was negligent in driving beyond the center line of the yellow-ray yellow-line, and led to the shock of the Plaintiff’s (vehicle No. 2 omitted) driving of Nonparty 2, who was proceeding on the opposite side of the said road (hereinafter “instant accident”).

C. During the instant accident, Nonparty 2 suffered from the injury of the scopical salt base, etc., the Plaintiff paid KRW 5,59,500 in total to Nonparty 2 for medical expenses, etc. between October 19, 2009 and December 2, 2009.

2. The plaintiff's assertion and judgment

A. The plaintiff's assertion

The terms and conditions of this case stipulate that the insured shall bear the cost of drinking driving accident in the event that an insurance company pays insurance money due to an accident while driving under influence of alcohol, and the defendant who is the husband of the non-party 1, the registered insured, is a relative insured or driving insured, or an insured with the consent of the registered insured, and falls under the insured with the consent of the registered insured as stipulated in the above provisions, and thus, the insured is obligated to pay 2.5 million won (2 million won + 500,000 won for personal injury + 500,000 won) and damages for delay to the insured.

B. Determination

1) Under the terms and conditions of this case, the insured who is entitled to claim for compensation from an insurance company: ① the insured as described in the insurance policy (the term and conditions of this case, referred to as the "registered insured"), ② the person who uses or manages the insured motor vehicle as his relative (the defendant refers to the "relative insured"), ③ the person who uses or manages the insured motor vehicle with the consent of the registered insured (the defendant refers to the "insured's consent"), ④ the person who has obtained the status equivalent to the insured's user under the registered insured's user or contract (the defendant refers to the "insured's consent"), ⑤ the person who is driving the insured motor vehicle for the insured (the defendant refers to the "Driver's "the insured"), and the person who is operating the insured motor vehicle for drinking or non-licenseing without the permission of the insured, and the insured's self-driving or non-driving charges related to the accident occurred when the driver of the insured was under influence of alcohol, or the insured's self-driving charges related to driving without the consent of the insured (the same shall apply to this case).

Therefore, as to whether the insured is subject to the provision of this case, it appears that the insured is the husband of the non-party 1, who is the named insured, and the defendant is a relative insured, the consented insured or the driver insured in accordance with the terms of this case. However, considering the whole purport of arguments as to the above, the following circumstances such as Gap evidence 3, Gap evidence 7 evidence 1 through 5 are stipulated, i.e., not only the registered insured who can claim compensation but also the person who uses the insured automobile with the name insured's consent (the insured's consent). Thus, the provision of this case provides that the insured's self-paid charges are not subject to the above insurance company's own accident liability if the insured's non-party 1's non-party 1's non-party 3's non-party 1's non-party 1's non-party 1's non-party 3's non-party 1's non-party 1's non-party 3's non-party 1's non-party 1's life insured driver's liability.

Therefore, the plaintiff's claim of this case premised on the fact that the defendant constitutes the insured as stipulated in the self-paid clause of this case is without merit without any need to further examine the remainder.

2) In addition, even though the plaintiff asserted that the defendant was not in the state of taking action at the time of the occurrence of the accident in this case, the judgment of the court of first instance, which dismissed the plaintiff's claim on the ground that the defendant was not the insured subject to the provision of self-payment in this case, is alleged to be unlawful since it violated the principle of pleading. Thus, the court cannot admit it unless the plaintiff asserted facts that constitute the elements of a substantive law which have legal effect in the pleading, but it is sufficient to regard such assertion as included in the plaintiff's assertion in light of the purport of the plaintiff's assertion. Further, it does not necessarily require the party responsible for the assertion, but it is sufficient that the party responsible for the assertion should state it, and even if the existence of the assertion is recognized through the hearing of the case submitted between the parties in this case, it is possible to consider it as the basis of the judgment (see, e.g., Supreme Court Decision 2008Da5073, Apr. 24, 2008).

3. 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. It is so decided as per Disposition.

판사 서영애(재판장) 김성래 김샛별