(영문) 서울중앙지방법원 2020.2.4. 선고 2018나85107 판결

The defendant shall pay to the plaintiff 27,318,680 won with 5% interest per annum from the day following the delivery of a copy of the claim of this case and of the application for modification of the cause of the claim of this case until the day of the judgment of the court of first instance, and 15% interest per annum from the next day to the day of full payment.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

Reasons

1. Basic facts

A. The plaintiff is a mutual aid business operator who has entered into a mutual aid agreement with C bus (hereinafter referred to as "Plaintiff bus").

B. On July 23, 2015, around 09:37, D, the driver of the Plaintiff bus, was driving the Plaintiff bus, stopped at the bus stop in front of the Seoul Gangnam-gu, Gangnam-gu, Seoul, and was waiting. The Defendant, immediately after the departure of the Plaintiff bus, went beyond a different point for boarding the Plaintiff bus, and became the Defendant’s right-hand side part of the front right-hand side of the Plaintiff bus (hereinafter “the instant accident”).

C. The Defendant suffered injury, due to the instant accident, in terms of the open frame of the body of the sloping body accompanied by the sloping body, damage to the right sloping sloping, two parts of the body, and soft salt, etc.

D. The Plaintiff, as advance payment under Article 11 of the Guarantee of Automobile Accident Compensation Act, did not recognize the liability for damages against the Plaintiff bus subscribers, paid KRW 27,318,680 in total to the F Hospital, etc. from May 2, 2016 to March 27, 2018.

E. Meanwhile, as to the instant accident, D, as the driver of the Plaintiff bus, was indicted as the charge of violating the duty of safe driving under Article 48(1) of the Road Traffic Act by Seoul Northern District Court Decision 2016Da2357, and the said court rendered a judgment of conviction of KRW 200,000 against D on November 10, 2016.

이에 D가 서울북부지방법원 2016노2466호로 항소하였고, 위 법원은 다음과 같은 사정들 즉, ① D가 운전하는 원고 버스의 우측 후사경은 일반 승용차와는 달리 버스 차체의 앞쪽으로 나와 있어 고개를 우측으로 돌리지 않고도 확인이 가능한 위치에 있고, 이 사건 사고 관련 블랙박스 영상에는 원고 버스가 출발하기 직전에 D가 고개를 우측으로 미세하게 움직이며 우측 후사경을 확인한 것으로 보이는 장면이 촬영되어 있는 점, ② 자동차의 후사경은 일정한 각도 안에 있는 사물만을 비추기 때문에 후사경으로 보이지 않는 사각지대가 존재하는데, 원고 버스가 출발할 당시 피고는 원고 버스의 뒷문 부근까지 달려왔으나 원고 버스 옆면과 약 2m 정도 거리를 두고 인도에서 뛰어 오고 있었으므로, D가 운전석에서 우측 후사경을 보았을 때 피고는 사각지대에 놓여 있어 보이지 않았을 가능성이 있는 점, ③ 피고는 수사기관에서 '정차중인 원고 버스를 왼손으로 쳤음에도 원고 버스가 출발하였다'는 취지로 진술하였으나, 이 사건 사고 관련 블랙박스 영상에 의하면 피고가 인도에서 원고 버스 옆면과 약 2m 정도 거리를 두고 달려오고 있을 때 원고 버스는 이미 출발한 상태였고, 피고가 원고 버스가 출발한지 약 2초 후에야 움직이는 원고 버스 차체를 왼손으로 친 사실을 인정할 수 있으므로 피고의 위 진술은 믿을 수 없고, 이미 원고 버스가 출발한 이상 D로서는 인도에서 원고 버스를 향해 달려오고 있는 승객까지 버스에 탑승하도록 할 의무는 없는 점, ④ 이 사건 사고 관련 블랙박스 영상에 의하면 피고가 넘어지게 된 것은 원고 버스를 향해 급하게 달려오다 인도와 차도의 높이 차이를 간과하고 왼쪽 발을 인도의 높이에 맞춰 허공에 잘못 디뎠기 때문으로 보이는 점 등을 종합하면, 검사가 제출한 증거들만으로는 D가 다른 사람에게 위험과 장해를 초래할 개연성이 높은 방법으로 운전한 것이라고 인정하기에 부족하고 달리 이를 인정할 증거가 없다는 이유로 2017. 5. 18. 원심판결을 파기하고 무죄 판결을 선고하였다.

Therefore, although the prosecutor re-appealed, the judgment of dismissal of the appeal was rendered on September 12, 2017 (2017Do7943) and the judgment of acquittal became final and conclusive.

[Ground of recognition] Facts without dispute, entry and video of Gap evidence 1 through 9 (including each number; hereinafter the same shall apply) and the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff's assertion

The Plaintiff bus departs from the bus stop and proceeds normally, and the Defendant was over the back wheels of the Plaintiff bus itself, and the Plaintiff bus driver did not appear as the Defendant at the time of the instant accident, and was unable to anticipate the instant accident. Therefore, the instant accident was an accident that occurred due to the Defendant’s full fault, not the Plaintiff bus driver’s negligence, and the Defendant is obliged to refund the Plaintiff the total advance payment, KRW 27,318,680, and the delay damages therefrom paid by the Plaintiff pursuant to Article 11(4) of the Guarantee of Automobile Accident Compensation Act.

B. Defendant’s assertion

The instant accident occurred due to the negligence of the Plaintiff’s bus departing from the Plaintiff bus without sufficiently examining whether the Plaintiff bus driver intended to board the Plaintiff bus in the vicinity of the bus stop prior to the departure of the Plaintiff bus. Thus, the Plaintiff’s claim should be dismissed.

3. Determination

A. Relevant provisions

Where a policyholder, etc. is liable for damage under Article 3 of the Guarantee of Automobile Accident Compensation Act, a victim may request an insurance company, etc. to pay insurance money, etc. directly to the policyholder, etc., as prescribed by Presidential Decree (Article 10(1) of the same Act), but where it is found that the policyholder, etc. has no liability for damage after advance payment has been made by the insurance company, etc., the victim may request the person who has received such advance payment to refund

B. In the instant case

In this case, in light of the following circumstances that are acknowledged as the negligence of the Plaintiff bus driver in light of the health stand, and the overall purport of the arguments as a whole, the following circumstances, which are acknowledged based on the facts of the above foundation and the evidence as seen earlier, do not seem to have a duty of care to anticipate and prepare for the passengers who attempted to board the Plaintiff bus already departing from the Plaintiff bus driver. Thus, the negligence of the Plaintiff bus driver

1) At the time of the instant accident, the Plaintiff bus was already in transit by starting and ending the front and rear door.

2) Examining the images of the black box box box, which taken the inside of the Plaintiff bus, D had the image of the Plaintiff bus closed and opened the door of the Plaintiff bus, through the right side of the Plaintiff bus, the Defendant did not seem to have the image of the Plaintiff bus, and when examining the images of the black box box, which taken the side of the Plaintiff bus, D started the Plaintiff bus and went up to the back of the Plaintiff bus due to the difference between delivery and the height of the vehicular road after approximately 2 seconds, while it was turned up to the back wheels of the Plaintiff bus, and it was turned up to the back wheels of the Plaintiff bus.

3) The instant accident appears to have occurred between usual forms, and even if the instant accident site is a bus stop, since the Plaintiff’s bus is not a passenger, and the door close and shut down the bus, even if D, a driver, has the best care to be equipped with a normal vehicle driver, it is not possible for the Defendant to anticipate the situation of the instant accident to leave the Plaintiff bus with the rear wheels part of the Plaintiff bus, and even if it was discovered and stopped, it is difficult to avoid an accident.

4) Generally, the driver of a motor vehicle is sufficient by performing his/her duty of care to the extent that he/she could avoid the outcome in preparation for an ordinary predicted situation, and there is no duty of care to anticipate and prepare for the occurrence of an exceptional situation that is ordinarily difficult. Therefore, it is reasonable to deem that the instant accident occurred by the defendant's gross negligence.

C. Sub-decision

Therefore, there is no liability for damages against the above 27,318,680 won. Thus, the defendant is obligated to pay to the plaintiff the plaintiff the total amount of 27,318,680 won of advance payment received from the plaintiff pursuant to Article 11(4) of the Guarantee of Automobile Accident Compensation Act and the amount of delay damages calculated from May 3, 2018 (see, e.g., Supreme Court Decision 748(2) and Article 749(2) of the Civil Act, which is the day following the delivery of a copy of the complaint in this case deemed as the malicious beneficiary after the delivery of the copy of the complaint in this case, which is considered as the beneficiary of bad faith, to be the beneficiary of bad faith. If a malicious beneficiary loses the above interest, he shall compensate for the damages caused by the return of the claim with the legal interest added, and it is reasonable to view that the defendant has an obligation to pay the amount of delay damages calculated from the next day of the lawsuit to the date of filing the claim for return of unjust enrichment, i.e.

4. Conclusion

Therefore, the plaintiff's claim shall be accepted on the grounds of its reasoning, and the judgment of the court of first instance is just in conclusion, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.