Mez Fire Marine Insurance Co., Ltd. (Attorneys Choi Ho-ho et al., Counsel for the plaintiff-appellant)

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

Defendant 2 and two others (Attorneys Seo Chang-chul et al., Counsel for the defendant-appellant)

April 13, 2011

Seoul Central District Court Decision 2009Da260349 Decided August 10, 2010

1. The part of the judgment of the court of first instance against Defendant Dong Fire Marine Insurance Co., Ltd. is revoked, and the plaintiff's claim corresponding to the above revocation part is dismissed

2. According to the expansion of the purport of the claim at the trial, Defendant 2, 3, and 4 shall pay to the Plaintiff 6,528,030 won each of them and 5% per annum from October 11, 2007 to August 10, 201, and 20% per annum from the next day to the day of complete payment.

3. The plaintiff's appeal, remaining expansion claims, and all appeals filed by the defendant 2, 3, and 4 are dismissed.

4. All costs of the lawsuit between the Plaintiff and Defendant Dongdong Fire Fire Marine Insurance Co., Ltd. shall be borne by the said Defendants, respectively, after the appeal between the Plaintiff and Defendant 2, 3, and 4.

5. Paragraph 2 can be provisionally executed.

1. Purport of claim

The Plaintiff: (a) from October 11, 2007 to the delivery date of a copy of the complaint of this case; (b) Defendant Dong Fire Fire Marine Insurance Co., Ltd. 5% interest per annum on 100,000,000 and 20% interest per annum on 7,528,030 won from the next day to the day of complete payment; (c) Defendant 2, 3, and 4 paid 5% interest per annum on 1,00,000 won from October 11, 207 to August 10, 2010; (d) from the next day to the day of complete payment; (e) 20% interest per annum on 6,528,000 won from the next day to the day of complete payment; and (e) 4% interest per annum from the next day to the day of complete payment; and (e) 5% interest per annum from the day of complete payment to the day of complete payment; and (e) 4% interest per annum from the Plaintiff’s interest per annum.

2. Purport of appeal

A. The plaintiff

The part of the judgment of the court of first instance against the plaintiff falling under the following order for payment shall be revoked. The defendant Dongdong Fire Marine Insurance Co., Ltd. shall pay to the plaintiff 22,584,090 won with 5% per annum from October 11, 2007 to the delivery date of a copy of the complaint of this case and 20% per annum from the next day to the date of complete payment.

B. The Defendants

The part against the Defendants in the judgment of the first instance is revoked, and each of the above revocation parts is dismissed.

1. Facts of recognition;

The following facts are not disputed between the parties, or acknowledged by each entry in Gap evidence 2 to 6, and Eul evidence 1 (including each number):

A. Status of the parties

(1) The Plaintiff is an insurer entrusted with the business of guaranteeing motor vehicle accident compensation pursuant to Article 37 of the former Guarantee of Automobile Accident Compensation Act (amended by Act No. 8852, Feb. 29, 2008; hereinafter “Personal Compensation Act”).

(2) Defendant Eastern Fire and Marine Insurance Co., Ltd. (hereinafter “Defendant East Fire”) is the insurer that entered into an automobile comprehensive insurance contract with Nonparty 3 on the instant cargo vehicle (hereinafter “instant cargo vehicle”). Defendant 2, 3, and 4 (hereinafter “Defendant 2, etc.”) are the children of Defendant 1 who died due to the instant accident, as follows.

B. Occurrence of the instant accident

(1) On August 28, 2007, Nonparty 2, a partner of Nonparty 3, driven the instant cargo vehicle and driven the national highway No. 3 in the upper part of Kimcheon-si, Kimcheon-si, which was used on the road due to negligence in failing to perform the duty of Jeoncheon-si, while driving the national highway No. 3 in the upper part of Kimcheon-si, Kimcheon-si, the non-party 1, who was used on the road as the truck of this case, went to the truck of this case and caused the non-party 1 to die on the spot (hereinafter “the instant accident”).

(2) On March 14, 2008, Nonparty 2 was prosecuted as charged with the facts charged as to the instant accident, and was sentenced to imprisonment without prison labor for 8 months and 2 years of suspended execution on July 17, 2008 from the Daegu District Court Kimcheon Branch for violation of the Act on Special Cases concerning the Settlement of Traffic Accidents. The said judgment was finalized on July 25, 2008.

C. Plaintiff’s compensation payment

(1) Meanwhile, on October 1, 2007, Defendant 2, who was delegated by Defendant 3 and 4 on October 1, 2007, claimed that the instant accident was an accident by a motor vehicle for which the holder of the instant accident was unknown, and filed a claim with the Plaintiff for the payment of compensation under Article 26(1) of the Act, and on October 10, 2007, the Plaintiff paid KRW 100,000,000 as the said compensation to Defendant 2, etc.

(2) Defendant 4 et al. submitted to the Plaintiff a letter stating that “When the instant accident is not deemed to be a loss compensation for the guaranteed business stipulated in Chapter 5 of the Act, Defendant 4 et al. shall promptly return the full amount of the compensation already received to the Plaintiff.”

2. Determination on the claim against the Defendant’s East Fire

A. The plaintiff's assertion

The instant accident constitutes “accident caused by the operation of a motor vehicle, in which the owner of the motor vehicle is unknown” under Article 26(1)1 of the Act. Since the Plaintiff paid compensation to Defendant 2, etc. as a motor vehicle accident compensation guarantee business entity, the Defendant is obliged to claim reimbursement for the said compensation to the Plaintiff pursuant to Article 31(1) of the Act.

B. Determination

Article 26(1)1 of the Act provides that “When a victim dies or is injured due to the operation of a motor vehicle, the owner of which is unknown, the Government shall compensate for the damage inflicted upon him/her within the limit of liability insurance at the request of the victim.” Article 31(1) of the Act provides that “In cases where the Government compensates for the damage under Article 26(1), the Government may exercise on behalf of the victim the right to claim compensation for the damage against the person liable for damage under Article 3 within the limit of the amount of compensation.” Therefore, in order for the Plaintiff to exercise on behalf of Defendant 2, etc. the insurer of the freight vehicle of this case to claim compensation for the damage caused by the instant accident to Defendant 2, etc. on the ground that the instant accident is not known, the Plaintiff shall first fall under an accident caused by the owner of the motor vehicle, where the instant accident is unknown.”

However, as seen earlier, the instant accident occurred by Nonparty 3, the owner of the instant cargo vehicle, Nonparty 2, and does not constitute an accident by an unidentified motor vehicle. Thus, pursuant to Article 31(1) of the Act, the Plaintiff cannot exercise in subrogation the right to claim damages against Defendant 2, etc. against the instant cargo vehicle.

In regard to this, the Plaintiff asserted that the instant accident still constitutes an accident by a motor vehicle by which the owner of the instant motor vehicle was unknown at the time when the Plaintiff paid compensation to Defendant 2, etc., even if the said owner was identified later, the instant accident constitutes an accident by a motor vehicle by which the owner of the instant motor vehicle is unknown under Article 26(1)1 of the Act. However, the motor vehicle accident compensation guarantee business under Article 26 of the Act is intended to supplement the motor vehicle liability insurance system, which is legally enforced for the purpose of protecting the victims of traffic accidents by a motor vehicle or a non-life-free motor vehicle, the purpose of which is to protect the victims of traffic accidents by which the owner is unknown, not an urgent compensation for the victims (see, e.g., Supreme Court Decision 2007Da54450, Dec. 27, 2007). In light of this purport, even if the owner is unknown at the time of paying compensation to the victim, so long as the said owner is found later, the motor vehicle accident compensation guarantee business operator does not bear the obligation to pay compensation.

Furthermore, according to the evidence mentioned above, the following facts are acknowledged. The accident of this case was first received by the police due to a traffic accident by a motor vehicle that is unknown to the owner. The police conducted an investigation against the driver of this case, which appeared to have passed the accident point under CCTV for crime prevention, as a witness on September 3, 2007, when investigating the driver of this case, the driver of this case was summoned the driver of the truck of this case as of September 3, 2007. The non-party 2 stated that although the driver of this case was driving the freight of this case at the time when the accident of this case occurred, it was not deemed that the traffic accident was occurred or that the victim of the traffic accident was used on the road. However, on September 27, 2007, the part of the National Institute of Scientific Investigation, among the National Institute of Scientific Investigation, was found to have been convicted of the driver of this case as of September 27, 2007, and that the driver of this case was found guilty.

In light of the above facts, prior to the Plaintiff’s payment of compensation to Defendant 2, etc. on October 10, 2007, Nonparty 2 was already identified as the driver of a sea-going vehicle by the police and was under investigation. Thus, it is difficult to deem that the Plaintiff was not aware at the time of paying compensation.

Therefore, the plaintiff's assertion based on the premise that the accident of this case constitutes an accident by a motor vehicle where the holder is unknown is without merit.

3. Determination on the claim against Defendant 2, etc.

As seen earlier, if the instant accident does not constitute an accident by a motor vehicle for which the holder is unknown, the Plaintiff paid compensation under Article 26(1) of the Act to Defendant 2, etc. even though the Plaintiff was not obligated to pay it. As such, the Plaintiff’s payment of compensation to Defendant 2, etc. was made without any legal cause, and barring special circumstances under Article 745(1) of the Civil Act, Defendant 2, etc. is obligated to return it as unjust enrichment.

In addition, as seen earlier, Defendant 2, etc. submitted a letter to the effect that “if the instant accident is found not an accident caused by a motor vehicle for which the holder is unknown, the said compensation shall be refunded.” As long as it is found that the instant accident is not an accident caused by a motor vehicle for which the holder is unknown, Defendant 2, etc. is obligated to return the insurance proceeds received from the Plaintiff pursuant to the said agreement.

Therefore, among the compensation received from the plaintiff, with respect to each of the above 7,528,030 won and each of the above 1,000,000 won from October 11, 2007 that the plaintiff sought after the date of receiving compensation, the defendant 2, 3, and 4 has an obligation to pay interest at the rate of 5% per annum under the Civil Act until August 10, 2010, which is the date of the judgment of the first instance that is the date of the decision of the court of first instance, and the amount of interest at the rate of 20% per annum under the "Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings" from the next day to the date of full payment, and with respect to each of the above 6,528,030 won, which is additionally recognized by the court of first instance, from October 11, 2007 to the date of full payment, 20% per annum from the day after each of the above special cases concerning the promotion of legal proceedings.

4. Conclusion

Therefore, the plaintiff's claim against the defendant 2, 3, and 4, including the part extended in the trial of the court, shall be dismissed as it is without merit, and the plaintiff's claim against the defendant 2, 3, and 4, including the part extended in the trial of the court of appeal, shall be accepted within the scope of the above recognition, and the remaining claim shall be dismissed as it is without merit. Since the part against the defendant's fire in the judgment of the court of first instance which has different conclusion is unfair, it shall be revoked, and the plaintiff's claim corresponding to the above cancellation shall be dismissed, and the plaintiff's appeal shall be dismissed as well as the plaintiff'

Judge Cho Jong-dae (Presiding Judge)