[1] In a case where the insured of an automobile insurance contract recognized and used the injury of the victim, but it cannot be deemed that he/she recognized and used the serious result, such as the victim's death, whether the damage caused by such death constitutes "the injury caused by the insured's intentional act" under the insurance contract exemption clause (negative), and the method of determining whether the damage caused by such death constitutes "important result such as death"

[2] The case holding that in a case where Gap, the insured of automobile insurance, was at a meeting with Eul et al. and was at the front of the apartment of Eul, driving his automobile in order to return home, and Eul was at the front of the apartment of Eul, Eul, but Eul was at the front of the apartment of Eul's purchasing the automobile; Eul was at the front of the apartment of Eul; Eul was at the front of the automobile; Eul was at the front of the vehicle; Eul was at the front of the vehicle; Eul was at the close of the vehicle in order to remove him; Eul was at the top of the rapid operation of the vehicle; caused the head due to the fall from the road, caused the injury, such as the external wound, the he was at the end of the road, and caused the injury, and caused the injury to Eul's permanent disability which partly lost his ability to work due to the decline, the recognition and use of causing serious injury as above, and thus, Gap cannot be deemed as an insurer's intentional damage under the terms and conditions of automobile insurance, and thus, Gap cannot be deemed as an insurer's damage.

[1] The special terms and conditions of automobile insurance provide that the insurer does not compensate for the “damage caused by the insured’s intentional act” under the special terms and conditions of automobile insurance. However, in light of the situation, before and after the occurrence of the accident caused by the operation of a motor vehicle, the insured was aware of and used for the injury of the victim, but where it cannot be deemed that the victim’s death, etc. was aware of and used for such serious result, damage caused by the death, etc. does not constitute “damage caused by the insured’s intentional act” as stipulated in the above exemption clause, and therefore, it is reasonable to deem that the above exemption clause does not apply. The serious result such as death, etc. is not simply determined based on the result, but should be determined based on a comprehensive consideration of the difference between the result of the vehicle driver’s intent and the actual occurrence of the victim, the relationship between the

[2] In a case where Party A, the insured of automobile insurance, was at a meeting with Party B, etc. and was driven by Party B before and after returning back the vehicle, and Party B was able to drive the vehicle first before the apartment of Party B, the case holding that the insurer cannot be deemed to have intentionally suffered damage to Party A, in light of the fact that Party B’s intention and actual difference between the result of the victim’s occurrence and the result, Party B’s automobile accident and the victim’s injury before and after the accident cannot be seen as an intentional injury since Party A’s injury did not depend on the terms and conditions of the automobile insurance in light of the fact that Party A’s injury cannot be seen as a permanent injury that partially lost work ability due to the decline from the road surface due to the fall from the wind of Party B, and the loss was caused by Party A’s injury, as Party A’s injury did not apply to Party A’s injury before and after the accident and the victim’s injury.

[1] Article 659(1) of the Commercial Act, Article 105 of the Civil Act / [2] Article 659(1) of the Commercial Act, Article 105 of the Civil Act

[1] Supreme Court Decision 2006Da39898 Decided October 26, 2007 (Gong2007Ha, 1840) Supreme Court Decision 2010Da62628 Decided November 11, 2010 (Gong2010Ha, 2266)

Plaintiff 1 and four others (Plaintiff 3 through 5 are minors, and the legal representative of the Plaintiff 1 and the mother 2) (Attorney Kim Dong-dong, Counsel for the plaintiff-appellant)

Music Insurance Co., Ltd. (Law Firm just Law, Attorneys Kim Jin-hee et al., Counsel for the plaintiff-appellant)

Seoul Central District Court Decision 2017Na48279 Decided September 14, 2018

The judgment below is reversed, and the case is remanded to the Seoul Central District Court.

The grounds of appeal are examined.

1. According to Article 3 of the Special Terms and Conditions of the Automobile Insurance and Article 8(1) of the General Terms and Conditions, the term “damage caused by the insured’s intentional act” stipulates that the insurer shall not compensate. However, in light of the situation, before and after the occurrence of the accident caused by the operation of a motor vehicle, the insured was aware of and used for the injury of the victim, but it cannot be deemed that the insured was aware of and used for the serious result, such as the death of the victim, etc., damage caused by the death, etc., does not constitute “the insured’s intentional loss,” and therefore, it is reasonable to deem that the above exemption clause does not apply (see, e.g., Supreme Court Decisions 2006Da3988, Oct. 26, 2007; 2010Da62628, Nov. 11, 2010). In such a case, the significant result, such as the death, etc. does not merely determine the result merely, but should be determined in consideration of the difference between the victim and the driver before and after the accident.

2. Review of the reasoning of the lower judgment and the evidence duly admitted by the lower court reveals the following facts and circumstances.

A. The Nonparty, after completing a meeting which had been maintained from the beginning of the day immediately before the instant accident, was driving the instant Lone, which is owned by another club in order to return home home to the workplace club.

B. On December 29, 2013, at around 07:57, the Nonparty: (a) driven Plaintiff 1 in front of the apartment on the road located in ○○dong in Sungsung-si; and (b) was being driven by a vehicle in front of the road in order to continuously take advantage of other fellows; (c) Plaintiff 1 was driving the vehicle in front of the road; and (d) Plaintiff 1 was able to prevent the vehicle from drinking and drive the vehicle in front of the road; and (d) Plaintiff 1 was aware of the fact that Plaintiff 1 still was able to remove Plaintiff 1, and Plaintiff 1 was able to drive the vehicle in front of the road on the road surface; and (e) Plaintiff 1 was faced with the head on the road surface by cutting off the vehicle from the said Bodon and suffered from injury, such as an injury to Plaintiff 1, such as an injury of a fluencing light in which the number of days of treatment cannot be known to Plaintiff 1.

C. Meanwhile, at the time of the instant accident, the Nonparty and the Plaintiff 1 were friendly with their workplace rent. At the time of the instant accident, the Nonparty seems to have committed the said act with the intent to bring the Plaintiff 1 to a serious injury.

라. 소외인도 사고 후 검찰에서 “원고 1이 정말 장난하려는 줄 알았고, 저도 장난으로 차를 움직인 것입니다.”, “처음 몰던 차다 보니 브레이크를 밟았는데 갑자기 제동이 되었습니다.”, “제가 깜짝 놀라 내려서 봤더니 도로에 코를 골고 잠들어 있는 것으로 보였습니다. 그래서 저는 장난하는 줄로만 알았습니다.”라는 취지로 진술하였다.

E. The Plaintiff 1 suffered permanent disability of 44% of the standard labor force loss rate for urban daily workers due to the influence and the low recognition function of the instant accident. By the end of the life of the Plaintiff 1, the Plaintiff 1 was placed in a heavy dependence for 8 hours per adult-time nursing and social activities, such as urinals and meals, every day.

In light of the difference between the result of the driver's intention and the result of the actual occurrence of the victim, the relationship between the driver and the victim, the situation of the accident, before and after the occurrence of the accident, etc. at the time when the above circumstances revealed, the non-party who driven the vehicle can be deemed to have known and used that the non-party who was the driver of the vehicle driving the vehicle would have caused an injury to a certain extent while falling off from the vehicle and sustained an injury. However, it cannot be said that the non-party who was aware that the non-party who was the driver of the vehicle driving the vehicle would have sustained an injury

Therefore, in light of the above legal principles, Plaintiff 1’s damage cannot be deemed as the damage caused by Nonparty’s intentional intent, and therefore, it is reasonable to deem that the instant case does not apply the exemption clause of the instant automobile insurance.

Nevertheless, the court below held that the damage caused by the accident is the damage caused by the non-party's intentional intention and thus the defendant is exempted from liability. The court below erred by misapprehending the legal principles as to the above exemption clause or by misunderstanding facts in violation of the rules of evidence, which affected the conclusion of the judgment. The ground of appeal assigning this error is with merit.

3. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jong-hee (Presiding Justice)