Case non-life insurance Co., Ltd. (Law Firm Cheongju, Attorneys Don-dong, Counsel for defendant-appellant)

Gyeonggi-do School Safety Mutual Aid Association (Law Firm Gangnam-LLC, Attorneys Early Deferred in Office)

September 21, 2018

Seoul Central District Court Decision 2017Gaso6981339 Decided October 25, 2017

1. The part of the judgment of the court of first instance against the plaintiff, which orders payment below, shall be revoked.

The defendant shall pay to the plaintiff 463,163 won with the interest of 5% per annum from August 29, 2017 to October 19, 2018, and 15% per annum from the next day to the day of full payment.

2. The plaintiff's remaining appeal is dismissed.

3. Of the total litigation costs, 60% is borne by the Plaintiff, and the remainder is borne by the Defendant, respectively.

4. The part concerning the payment of money under paragraph (1) may be provisionally executed.

The judgment of the court of first instance is revoked. The defendant shall pay to the plaintiff 700,666 won with 5% interest per annum from August 29, 2017 to the delivery date of a duplicate of the complaint of this case, and 15% interest per annum from the next day to the day of complete payment (the plaintiff reduced the plaintiff's claim in the trial).

1. Facts of recognition;

A. On November 25, 2015, Nonparty 1’s mother Nonparty 3 entered into the KB Car Insurance Contract (hereinafter “instant insurance contract”) with the Plaintiff as the insured’s husband Nonparty 4 and the insurance period from November 25, 2015 to November 25, 2054. According to the instant insurance contract’s agreement on the guarantee of daily life compensation, the Plaintiff is entitled to compensate for actual damages incurred by Nonparty 1’s relatives living together with the insured, his spouse, unmarried child, and his/her living together with the resident registration, within the limit of KRW 100 million, by bearing legal liability for damages to another person’s body or property due to an accident occurred during his/her daily life.

B. At around 1:32 on September 8, 2016, Nonparty 1, who was attending the sixth grade of the ○○ Elementary School located in Pyeongtaek-si, was faced with Nonparty 2’s head, who was going to go back to the front of the projecting hole, which was kept adjacent to the sports warehouse in the above school playgrounds at the time of the closure of the 3rd regular sports hours. In order to avoid punishment, Nonparty 2 suffered from the injury of “the instant accident” due to the instant accident, Nonparty 2, who was faced with Nonparty 2’s head.

C. The Plaintiff: (a) considered Nonparty 2’s amount of damages due to the instant accident as KRW 11,010,660 (the treatment cost of Nonparty 3,38,832, the future treatment cost of KRW 1,671,830, the consolation money of KRW 6,000,00), and paid KRW 2,858,590 directly insurance money to Nonparty 2 of the instant accident on August 28, 2017; and (b) paid KRW 791,676 as indemnity to the National Health Insurance Corporation, respectively.

[Reasons for Recognition] Unsatisfy, entry of Gap 1 through 6, the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff paid insurance money in accordance with a special contract to guarantee the daily life compensation liability of the insurance contract of this case to the non-party 1 who is the beneficiary under Article 682 (Subrogation of Insurer) of the Commercial Act. The defendant asserts that the defendant is obligated to pay to the plaintiff the plaintiff the amount of the plaintiff's share of the plaintiff's insurance 700,666 won (2,101,999 won (2,101,999 won) out of the amount of the plaintiff's insurance money paid to the beneficiary or his guardian and the amount of 712,509 won equivalent to 30% of the amount of the medical fees paid to the National Health Insurance Corporation (2,375,030 won (2,389,490 +712,509 won), which is the part to be borne by the principal of the school.

B. On this point, the defendant asserts that the insurer who has paid the insurance money exercises the rights against the policyholder or the third party of the insured, and the right to claim the insurance money is limited to the rights belonging to the non-party 2, who is the victim, and the right to claim the reimbursement against the defendant of the non-party 1 cannot be recognized because the accident occurred under the purport of the Act on the Prevention of and Compensation for School Safety Accidents. Thus, the plaintiff cannot obtain the right to claim the reimbursement against the defendant

3. Determination

A. Whether the plaintiff acquired the right to indemnity against the defendant

(1) Article 2 subparag. 6 of the Act on the Prevention of and Compensation for School Safety Accidents (hereinafter “School Safety Act”) provides that “the purpose of the Act is to prevent school safety accidents and to provide for matters necessary for the implementation of projects for the safety accident compensation mutual aid to promptly and appropriately compensate for damages caused by school safety accidents (Article 1).” With respect to school safety accidents subject to the payment of the benefits of the benefits of the benefits of the benefits of the benefits of the benefits of the benefits of the school, “any accidents that occur during educational activities and cause harm to the lives or bodies of students, teaching staff, or participants in educational activities, and any accidents that directly cause harm to the lives or bodies of the students, teaching staff, or participants in educational activities, which are prescribed by the Presidential Decree as those that occur to the students, teaching staff, or participants in educational activities” (Article 2 subparag. 6 of the Act). While school safety accidents subject to the benefits of the benefits of the school are not limited to tort liability caused by the school safety accidents on the part of the school, the scope of the benefits of the benefits of the beneficiaries is limited to the extent of the benefits of the benefits of the beneficiaries.

(2) Meanwhile, according to Articles 3, 49(1), and 51 of the School Safety Act, a mutual aid holder shall pay the mutual aid fees to the Mutual Aid Association; however, a mutual aid holder may collect all or part of the amount to be appropriated for the mutual aid fees to be paid to the beneficiaries; the State or local governments shall bear the mutual aid fees when the beneficiaries are protected by the Special Act, such as the National Basic Living Security Act and the Act on the Honorable Treatment of Persons of Distinguished Service to Independence, etc.; the State or local governments may pay the mutual aid fees to the beneficiaries who are students within the scope of the budget; and the State or local governments shall also be able to subsidize the expenses for the prevention of school safety accidents and the operation of the school safety accident compensation mutual aid association within the scope of the budget; in light of the above provisions, regardless of the actual budgeting or operation relationship of the Mutual Aid Association, it is reasonable to deem that the beneficiaries or their parents, who are the beneficiaries, may be responsible for the mutual aid fees, as well as the beneficiaries' school safety accidents caused by the students, should be liable for damages equivalent to the benefits through the Mutual Aid Association.

(3) However, according to Article 44(1) of the School Safety Act, where a person who caused a school safety accident is “a person who is not a person who is not a person who is a person who is eligible for a deduction or a person who is not a person who is not a person to receive a deduction,” the Mutual-Aid Association’s claim is recognized in all cases of intentional negligence, gross negligence, and where a person who caused a school safety accident is “person to receive a deduction”, the Mutual-Aid Association’s claim is recognized only in cases of intentional negligence or gross negligence. Therefore, it is reasonable to deem that a student or his guardian who caused a school safety accident can claim compensation against the defendant within the scope of the amount of deduction benefits pursuant to the standards under the School Safety Act,

(4) However, in this case, the negligence of Nonparty 1, who is the person causing a school safety accident, appears to be the progress room. Thus, even if the Defendant paid the deduction benefits to Nonparty 2, the claim for reimbursement against the guardian of Nonparty 1 or Nonparty 1 cannot be allowed. Therefore, in case where the Defendant paid the compensation for damages to Nonparty 2, who is the victim before the payment of the deduction benefits, it shall be deemed that the Defendant can claim reimbursement against the Defendant within the scope of the amount of the deduction benefits pursuant to the standards under the School Safety Act stipulated under Article 35 of the School Safety Act. Accordingly, it is reasonable to deem that the Plaintiff who acquired the right to claim the deduction benefits against the Defendant who is the victim pursuant to Article 682 (Subrogation) of the Commercial Act by paying the insurance money to Nonparty 2, who is the victim pursuant to the special agreement to guarantee the daily life compensation liability of the insurance contract of this case, within the scope of the amount of the deduction benefits stipulated under the School Safety Act.

B. Scope of recognition of the Plaintiff’s right to indemnity against the Defendant

(1) Article 35(1) of the School Safety Act provides that "the Mutual Aid Association shall determine the amount of mutual aid benefits by type of mutual aid benefits pursuant to the provisions of Articles 36 through 40." Articles 36 through 40 provide that the type of mutual aid benefits shall be classified into medical care benefits, disability benefits, nursing benefits, bereaved family's benefits, and the scope of and standards for the payment of benefits to the beneficiary or his/her guardian, and Article 36 of the Medical Care Benefits Act provides that "if the beneficiary is injured due to school safety accidents, the beneficiary or his/her guardian, etc. shall be paid the medical care benefits, but the medical care benefits under the School Safety Act shall be the amount borne by the beneficiary or his/her guardian, etc. among the expenses actually incurred in treating the beneficiary, the medical care benefits under the Medical Care Benefits Act shall be limited to the amount borne by the beneficiary or his/her guardian, etc. among the expenses actually incurred in treating the beneficiary, and thus, the National Health Insurance Corporation shall not be subject to the payment of medical benefits, medical expenses expected to be required in the future, and the beneficiary or their guardian, etc.

(2) In light of the above legal principles, according to the fact-finding results with respect to the chief of regional headquarters of the National Health Insurance Corporation in the court of first instance, the defendant's share of the medical care benefits of the National Health Insurance Corporation in relation to the injury suffered by the non-party 2 due to the accident in this case can be recognized as constituting 1,389,490 won for medical treatment expenses, 389,490 won, and damages for delay for delay. Therefore, the defendant's share of the medical care benefits of the National Health Insurance Corporation in relation to the injury suffered by the non-party 2 shall be 463,163 won (1,389,490 won x 1/3,490 won) and damages for delay, which are recognized as the share of the plaintiff's share due to double insurance.

(3) In response to the claim for reimbursement by the National Health Insurance Corporation, the Plaintiff asserted that the amount of KRW 2,375,030, which is the part of the Corporation's charges out of the health care benefit for Nonparty 2, which is the part to be borne by the principal of the school, is the amount of KRW 712,509,000, which is the part to be borne by the principal of the school, as well as the amount of KRW 1/3 (the Plaintiff's charges out of the above amount, as the amount to be borne by the principal of the school, and therefore, the proviso of Article 36 (2) of the School Safety Act provides that the amount to be borne by the principal of the school shall be borne by the Mutual-Aid Association where the amount of compensation for the exercise of the right to indemnity is determined by the court's decision, etc., but the Plaintiff did not make any specific assertion or admission as to whether the amount claimed by the principal of the school constitutes "the part to be borne by the principal" of the above provision, and

(4) Therefore, the Defendant is obligated to pay to the Plaintiff the amount of KRW 463,163 as well as damages for delay calculated at the rate of 5% per annum under the Civil Act from August 29, 2017, which is the date following the Plaintiff’s payment date, to October 19, 2018, which is the date when the Defendant rendered a reasonable judgment, to the effect that the Defendant asserts the existence or scope of the obligation.

4. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted within the above scope of recognition and the remaining claims shall be dismissed as without merit. Since the judgment of the court of first instance is partially unfair with different conclusions, part of the plaintiff's appeal shall be accepted, and the part against the plaintiff falling under the above recognition scope of the judgment of the court of first instance shall be revoked, and the defendant shall be ordered to pay the above amount, and the remaining appeal of the plaintiff shall be dismissed. It is so decided

Judges Lee Dong-hee (Presiding Judge)

1) The Defendant does not assert the intention or gross negligence of Nonparty 1.