Hyundai Marine Fire Insurance Co., Ltd. (Law Firm Dowon, Attorneys Han-gu, Counsel for defendant-appellant)

Reference Non-Life Insurance Co., Ltd. (Law Firm Name, Attorneys Hong-jin et al., Counsel for the plaintiff-appellant)

July 12, 2018

Seoul Central District Court Decision 2016Da526654 Decided May 17, 2017

1. Revocation of the first instance judgment.

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The defendant shall pay to the plaintiff 89,256,005 won with 15% interest per annum from the day following the day of service of a copy of the complaint of this case to the day of complete payment.

2. Purport of appeal

The same shall apply to the order.

1. Basic facts

The reasoning for this part is as stated in the reasoning of the judgment of the court of first instance, and thus, this part is cited in accordance with the main sentence of Article 420 of the Civil Procedure Act.

2. Determination on this safety defense

A. The defendant's defense

The reasoning of this Court is as follows: (a) the reasoning of the judgment of the court of first instance is the same as that of the judgment of the court of first instance; and (b) therefore, (c) the reasoning is cited in accordance with Article

B. Determination

In the case where there is any difference between the parties regarding the validity or scope of the agreement, the agreement to bring an action is a serious litigation law, such as the waiver of the right to trial guaranteed by the Constitution, and it shall be effective as to the expected situation at the time of the agreement, and where there is an opinion on the validity or scope thereof, it shall be determined after a reasonable interpretation of the parties’ intent (see, e.g., Supreme Court Decision 2011Da80449, Nov. 28, 2013). Article 45 of the Rules of this case only provides for the contents concerning the notification, hearing, and claim concerning the post-processing agent as to whether it is possible to apply negligence on the part of the victim, and there is no provision prohibiting the filing of a lawsuit in this regard, as alleged by the defendant, it is difficult to view that the agreement to have been established in such a case even if the plaintiff did not go through the procedures under Article 45(2) and (3) of the Rules of this case. Therefore, the defendant's defense on

3. Judgment on the merits

A. Determination on the cause of the claim

The reasoning for this part of this Court is as follows, except for the addition of the following items between the fourth and sixth of the judgment of the court of first instance, and the corresponding part of the reasoning of the judgment of the court of first instance. Thus, it is acceptable in accordance with the main sentence of Article 420 of the Civil Procedure Act.

“The Defendant alleged that the percentage of the Plaintiff’s driver’s fault in the instant accident ought to be at least 60%, but the Plaintiff and the Defendant agreed on the percentage of fault as seen earlier, and as long as the Defendant’s assertion and proof regarding the invalidation of the said agreement, the Defendant should share the damages according to the agreed percentage of fault. Therefore, the Defendant’s above assertion is without merit.”

B. Judgment on the defendant's defense

1) The defendant's assertion

The non-party 2 and the non-party 3, who are the driver of the defendant vehicle, constitute a mother-and-child relationship. Under Article 45 of the Code of this case, the plaintiff should have compensated only for the remainder which offsets the non-party 2's negligence by applying the victim's negligence pursuant to the provision of Article 45 of the Code of this case. In the event there is doubt about the application of the negligence, only the compensation was made after going through the procedures under paragraphs 2 and 3 of the above Code. The plaintiff paid the insurance money without deducting the victim's negligence. Thus, the

2) Determination

A) Effect of violation of Article 45 of the Rules of this case

According to the evidence No. 5, Article 2 (Definition of Terms) subparag. 1 of the Mutual Agreement on the Deliberation of Dispute over Compensation for Automobile Insurance (hereinafter “Agreement”) provides that “a contracting company” means an insurance company that is a party to this Agreement and a mutual aid company or a mutual aid business entity that participates as a party to this Agreement by expressing its intention to be subject to this Agreement after the conclusion of this Agreement,” and Article 3 (Scope of Application) provides that “All contracting companies, participating institutions, and agreement organizations shall be subject to this Agreement and the Code of Implementation, and they shall have the obligation to comply therewith,” and Article 3 (1) of the Rules of this case, which provides for the detailed guidelines for the enforcement of the Agreement and detailed procedures for the resolution of dispute over compensation for automobile insurance, provides that “All contracting companies shall resolve with good faith on the basis of the agreement and the rules.” In light of the above, it is reasonable to view that the agreement parties to this case should freely have the duty to comply with the agreement by expressing their intention to be subject to the above regulations, and that the parties to this case may freely have participated in the agreement or the principle of freedom of indemnity.

B) Whether Article 45 of the Rules of the instant case applies to medical treatment costs

(1) Whether the relevant provision applies to personal liability insurance Class I (liability insurance)

The proviso of Article 3 (1) 2 of the Enforcement Decree of the Guarantee of Automobile Accident Compensation Act (hereinafter “the instant proviso”) provides that where the amount of damage suffered by the victim falls short of the amount corresponding to the medical expenses calculated in accordance with the standards for medical fees covered by automobile accident insurance under Article 15 (1) of the Automobile Loss Guarantee Act, the corresponding amount of the medical expenses shall be paid as a liability insurance amount within the scope of the amount prescribed in [Attachment Table 1]. The purport of the instant proviso is to interpret that even in a case where the amount of damage calculated by subtracting the amount equivalent to the rate of negligence among the damage suffered by the victim of the traffic accident falls short of the medical expenses of the above provision, the relevant medical expenses shall be deemed as the amount of damage to guarantee the victim’s medical treatment due to the traffic accident, and thus, the victim of the traffic accident may claim the corresponding amount of the medical expenses under the instant proviso as the liability insurance amount under the Automobile Loss Compensation Act (see Supreme Court Decision 209Da57651, Nov. 26, 2009).

Therefore, according to the above legal principles, notwithstanding the validity of the restriction on the exercise of the right to indemnity under Article 45 of the Rules of this case, the Defendant’s obligation to pay the full amount of indemnity to the Plaintiff may be deemed to have been recognized until the limit of the insurance proceeds under the Automobile Loss Compensation Act out of the medical expenses corresponding to Nonparty 3’s medical expenses. However, as seen earlier, on October 31, 2016, the Defendant paid on the part of Nonparty 3 the maximum amount of the insurance proceeds under the Automobile Loss Compensation Act applicable at the time of the instant accident as well as the maximum amount of 20 million won (liability insurance amount). Since the amount of indemnity claimed by the Plaintiff to the Defendant in this case is the remainder after deducting the amount of indemnity claimed by the Plaintiff, there is no room to apply the above legal principles to

(2) Whether the provision of the personal compensation II applies to the personal compensation

Article 10(1) and (2) of the Defendant’s Business Automobile Insurance Clause (which was submitted by the Defendant to the reference document on January 19, 2018) provides that the amount of insurance proceeds to be paid by an insurance company shall be calculated by deducting the amount of deduction from the aggregate amount of “amount calculated according to the standard for payment of insurance proceeds” and “expenses,” and the amount of the insured’s compensation to the claimant for damages according to the final and conclusive judgment, etc. of the court shall be deemed as “amount calculated according to the standard for payment of insurance proceeds.”

As above, the provision on the contents of compensation I and II in the terms and conditions of insurance provides that “in the event a lawsuit has not been brought, insurance money shall be paid on the basis of an amount calculated according to the standards for the payment of insurance money stipulated in the terms and conditions, and in the event a lawsuit is brought, insurance money shall be paid on the basis of the amount calculated based on the actual amount of damage inflicted on a victim by a final judgment of the court.” The provision that “in the event the amount calculated according to the standards for the terms and conditions is offset from the amount calculated according to the ratio of fault on the part of the victim to the amount calculated according to the ratio of fault on the part of the victim, the amount equivalent to the medical relationship expenses shall be compensated shall not apply to cases where a lawsuit is brought (see Supreme Court Decision 2012Da182

Therefore, in full view of the contents and legal principles of the automobile insurance agreement as seen earlier, it is reasonable to deem that Article 45 of the Rules of this case applies to claims for indemnity amount equivalent to the Plaintiff’s expenses for treatment-related treatment-related treatment-related treatment-related treatment-related treatment-related treatment-related treatment-related treatment-related treatment-related treatment-related treatment-related compensation-related compensation-related compensation-related compensation-related compensation-related compensation-related compensation-related compensation-related compensation-related compensation-related compensation-related compensation-related compensation-related compensation-related compensation-related compensation-related compensation-related compensation-related compensation-related compensation-related compensation-related compensation-related compensation-

C) Criteria for the application of the victim's negligence

In the case where multiple insured workers are liable for damages for the same accident in the damage compensation insurance exist, insured benefits also exist independently for each insured person. Therefore, in principle, each insured person shall individually take into account the requirements for liability for damages or the application of the exemption clause, and determine the existence of liability for compensation (see Supreme Court Decision 2012Da1177, Dec. 13, 2012, etc.).

In light of the above legal principles, the Plaintiff asserted that Nonparty 3 is unrelated to the KTren and is in a mother-and-child relationship with Nonparty 2, the consent insured, and that it is reasonable to view the victim’s side subject to Article 45 of the Rules of this case as only the registered insured. Thus, it is reasonable to conclude that the victim’s side subject to Article 45 of the Rules of this case is the criteria for the registered insured. Thus, even if there is no express phrase as alleged by the Plaintiff in Article 45 of the Rules of this case and according to the evidence No. 8 (Matters agreed between the non-life insurance company and the representative consultative body of non-life insurance company), it can be known that the agreement was made to apply to the determination of whether the victim’s fault applies to the victim’s side (the illegal party). (The intermediate part of the above documents is stated as “the application of the driver’s negligence to the lineal family of the non-registered driver’s standard” in the middle part of

3) Sub-decisions

Therefore, the victim non-party 3 is a person who is in a social relationship with the non-party 2, who is a driver of the plaintiff's vehicle and the consent insured and the non-party 2, who is a lineal ascendant and descendant, and the claim for reimbursement of this case does not include a liability insurance amount equivalent to the amount of medical expenses. Thus, the plaintiff's claim for reimbursement of this case is subject to Article 45 of the Rules of this case, and there is no dispute between the parties that the plaintiff did not go through the procedure stipulated in Article 45 (2) and (3) of the Rules of this case. Thus, the defendant's defense is justified,

4. Conclusion

Therefore, the plaintiff's claim shall be dismissed as it is without merit, and since the judgment of the court of first instance is unfair with different conclusions, the defendant's appeal is accepted, and the plaintiff's claim is revoked and dismissed.

Judges Kim Jong-soo (Presiding Judge)