[1] Meaning of "a person who is driving an insured automobile (including operation assistants)" for each insured person under the General Terms and Conditions of Automobile Insurance, and in the case of the above driver, whether the above driver constitutes the insured person under the above Terms and Conditions regardless of whether the registered insured person has given specific and individual consent (affirmative)

[2] The case affirming the judgment of the court below which held that the registered insured person is the driver under the comprehensive automobile insurance contract regardless of whether the registered insured person has obtained specific and individual consent as to the operation of the insured motor vehicle in question, where the registered insured person was dispatched from the dispatched company under the contract for worker dispatch

[3] Whether the temporary work agency's recognition of operational identity of a temporary work agency, which dispatched an employee to a registered insured under a contract for temporary placement of an employee, so that he/she is engaged in driving of an insured automobile (negative), and whether such temporary work agency can be deemed an insured worker under the comprehensive automobile insurance contract (negative

[4] Whether the insurer's subrogation of the right to claim damages, etc. based on the employer's liability against the temporary work agency, the user of the temporary agency worker who caused the insured event, is recognized (affirmative)

[5] In light of the terms and conditions of a contract for temporary placement of workers concluded between a registered insured and a temporary work agency, the case holding that the insurer does not have any right to the temporary work agency of the registered insured worker to be acquired by subrogation of the insurer on the ground that it is reasonable to view that the registered insured does not exercise the right to claim damages against the insured accident caused by the insured motor vehicle caused by the temporary agency worker or the non-performance of the contract for temporary placement of workers

[1] In light of the purport that the scope of the insured is extended to the person who drives the insured motor vehicle in question for the insured as mentioned in the General Terms and Conditions of Automobile General Insurance for the insured, etc., the person who is operating the insured motor vehicle (including operation assistants) refers to the person who is employed by the ordinary named insured, etc., and also the person who drives the insured motor vehicle in question for the insured, as mentioned above in the General Terms and Conditions of Automobile General Insurance for the Insured, and that the driver and the person who uses or manages the motor vehicle with the above driver's consent as the insured in separate items, the above driver shall be deemed to be the insured under the above Terms and Conditions regardless of whether specific and individual consent exists in the operation

[2] The case affirming the judgment of the court below which held that the registered insured person is the driver under the comprehensive automobile insurance contract regardless of whether the registered insured person has obtained specific and individual consent as to the operation of the insured motor vehicle in question, where the registered insured person is engaged in driving of the insured motor vehicle under the contract for dispatch of workers

[3] Operational benefits arising from the operation of a motor vehicle by a temporary agency worker are attributed to a user company, not to belong to a temporary work agency. A temporary work agency is not likely to direct and supervise the operation of an insured motor vehicle due to an accident caused by a temporary agency worker, so there is no possibility of controlling or controlling the insured motor vehicle. If recognition of the operation of a temporary work agency is granted, the user company shall be liable for damages under the Guarantee of Automobile Accident Compensation Act even if the temporary agency worker is not negligent in the appointment and supervision of the temporary agency worker, and thus, the temporary work agency who does not have the status of an operator shall not be deemed an approved insured worker.

[4] In an automobile comprehensive insurance policy, the scope of insurer's liability to include a driver in the insured is to expand the scope of insurer's liability to protect the insured and the victim, and it is not the primary purpose of the driver's liability, and even if the temporary work agency can exercise the right to indemnity against the temporary agency worker, the exercise of the right to indemnity may be denied or restricted according to all circumstances, and it cannot be deemed unreasonable to share a certain amount of damages to the temporary agency worker who has been negligent in relation to the automobile accident. Therefore, it is not always unreasonable to recognize the insurer's subrogation of the right to indemnity based on the employer's liability against the temporary agency worker who caused the accident

[5] In light of the terms and conditions of a contract for temporary placement of workers concluded between the registered insured and the temporary work agency, it is reasonable to view that the registered insured does not exercise the right of the registered insured to the temporary work agency as to the insured accident caused by the insured motor vehicle caused by the temporary agency worker, on the ground that it is reasonable to view that the registered insured does not exercise the right of the registered insured to the temporary work agency upon the insurer's subrogation to claim compensation for damages based on

[1] Article 682 of the Commercial Code / [2] Article 682 of the Commercial Code / [3] Article 3 of the Guarantee of Automobile Accident Compensation Act, Article 682 of the Commercial Code / [4] Article 682 of the Commercial Code, Article 756 of the Civil Code / [5] Article 682 of the Commercial Code, Articles 105, 390 and 756 of the Civil Code

[1] Supreme Court Decision 2000Da3331 Decided September 29, 200 (Gong2000Ha, 2218) Supreme Court Decision 2001Da78430 Decided March 26, 2002 (Gong2002Sang, 963)

Dongbu Fire and Marine Insurance Co., Ltd. (Law Firm Hank, Attorney Jeon Young-young, Counsel for defendant-appellant)

KON Inc. (Law Firm Global Law Firm, Attorneys Lee Dong-soo et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2004Na28360 delivered on January 13, 2005

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

1. The term "person who is driving an insured motor vehicle (including operation assistants)" in the General Terms and Conditions of Automobile Insurance refers to the person who is employed by an ordinary named insured person, etc. and drives an insured motor vehicle. Meanwhile, in light of the purport that the scope of the insured is extended to the person who drives the relevant insured motor vehicle on behalf of the insured under the General Terms and Conditions of Automobile General Insurance and that the driver and the person who uses or manages the motor vehicle with the above driver's consent is reported to be the insured in a separate item, the above driver shall be deemed to be the insured under the above Terms and Conditions regardless of whether there exists specific and individual consent in the operation concerned (see Supreme Court Decisions 200Da3331 delivered on September 29, 200, 201Da78430 delivered on March 26, 2002).

The court below found the facts as stated in its reasoning based on the adopted evidence, and found that the insured is included in the business automobile comprehensive insurance clause applicable to the insurance contract of this case including "person who uses or manages an automobile with the consent of the named insured in addition to the named insured as stated in the insurance policy, and "the person who is in charge of operating an insured automobile" for each insured person. Such driver also includes not only the driver who is directly employed by the named insured but also the person who makes the insured be dispatched from the dispatched company to be engaged in driving an insured automobile after concluding a contract for dispatching an employee, and such driver shall be deemed to be the insured under the terms and conditions regardless of whether specific and individual consent exists in the operation. Thus, the court below erred by misapprehending the legal principles as to the selection of facts in light of the above legal principles, or by misapprehending the legal principles as to the subrogation of the insured under the contract of this case.

2. Furthermore, the court below held that in the case of the accident of this case where the accident of this case occurred due to the non-party's act of the non-party who caused the accident of this case, the insurer cannot obtain the right of subrogation against the defendant, as well as the non-party who is the employer, in light of the fact that the insurer's subrogation is not recognized on the ground that the accident of this case was caused by one of the insured, and that the insurer's subrogation is not recognized on the ground that the accident of this case is caused by one of the insured, the insurer cannot be recognized on the ground that the insurer's subrogation is not recognized on the ground that the accident of this case is caused by one of the insured.

However, it is difficult to accept such judgment of the court below.

If a temporary agency worker's operating profit due to the operation of an insured motor vehicle belongs to a user company, not to belong to a temporary work agency. A temporary work agency is not likely to control or control an insured motor vehicle due to an accident caused by a temporary agency worker. If the operator of a temporary work agency recognizes the operator of a temporary work agency, the user company shall be liable for damages under the Guarantee of Automobile Accident Compensation Act even if the temporary agency worker is not negligent in the appointment and supervision of the temporary agency worker if the user company does not purchase a comprehensive automobile insurance contract, so it is unfair that the temporary work agency who does not have the status of the operator cannot be deemed an insured worker. In addition, in a comprehensive automobile insurance contract, the inclusion of a driver in the insured is for protecting the insured and the victim by expanding the insurer's liability scope of the insurer's liability and the temporary work agency is not the main purpose of protecting the insured and the temporary work agency is not the protection of the insured and the temporary agency worker's compensation for the temporary agency worker. Even if the temporary work agency worker can exercise the right to indemnity against the temporary agency worker, it cannot be deemed unreasonable.

Therefore, the judgment of the court below that the insurer's subrogation against the non-party who is the non-party insured is not recognized as long as one bank, as the non-party insured, can not acquire the rights of the non-party insured as the temporary agency worker by subrogation of the insurer, is erroneous in the misapprehension of legal principles as to the scope of the third party under Article 6

3. However, even if the subrogation of the insurer against the Defendant, who is the employer of the Nonparty, is recognized, the Plaintiff, the insurer, cannot be acquired by subrogation of the insurer, so long as one bank, as the named insured, cannot be deemed to have acquired the right to claim damages based on the employer’s liability or the right to claim damages based on the nonperformance of the worker’s obligation under the contract of dispatch against the Defendant, as follows, and thus, the Plaintiff’s claim based

In other words, subrogation of an insurer under Article 682 of the Commercial Act acquires the rights of a policyholder or the insured against a third party. Therefore, according to the records and facts acknowledged by the court below, Article 18 of the worker dispatch contract between one bank and the defendant provides that "one bank shall subscribe to comprehensive insurance (in preparation for an accident that may occur during the operation of a vehicle) and shall prepare for and deal with an accident" in preparation for an accident that may occur during the operation of the vehicle, and Paragraph 2 of Article 18 provides that "one bank shall bear insurance money when a vehicle accident occurs, and the defendant shall bear expenses (in case of an accident)." The meaning of Paragraph 2 of Article 18 provides that "one bank shall bear insurance money" as the subject of comprehensive insurance, but it is difficult to consider as the provision for share of insurance premiums as the subject of insurance, and the latter part of Paragraph 2 of Article 18 of the Commercial Act provides for the insurer to pay the insurance money to the defendant, and it appears that the plaintiff would not have been paid the insurance money of the defendant bank as well as the first worker dispatch contract.

Therefore, the conclusion of the court below that dismissed the plaintiff's claim against the defendant is justified. Therefore, even if there is an error of law as pointed out in the ground of appeal, it cannot be viewed as affecting the conclusion of judgment

4. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Yoon Jae-sik (Presiding Justice)