[1] Where an obligor for damage under Article 3 of the former Guarantee of Automobile Accident Compensation Act is a relative living together with the victim, whether the guaranteed business operator who paid compensation to the victim can exercise the right to claim compensation by the victim under Article 31 (1) of the same Act (negative)

[2] The case holding that in a case where the obligor for damage compensation under the former Guarantee of Automobile Accident Compensation Act, in a case where: (a) in a case where: (b) the obligor for the security of automobile accident compensation paid medical expenses and compensation; (c) the obligor for damages, in a case where: (a) the obligor for damage, who was in fact in possession and use of a vehicle without being covered by the automobile comprehensive insurance (including liability insurance), sustained the injury by his wife Byung, who was caused by negligence, due to the accident

[1] In a case where the assistance business operator entrusted by the Minister of Construction and Transportation with the duties concerning the assistance business under Article 26 (1) of the former Guarantee of Automobile Accident Compensation Act (amended by Act No. 8852 of Feb. 29, 2008) pays compensation to the victims under Article 37 (1) of the same Act, the assistance business operator may exercise on behalf of the victims the right to claim compensation for damages against the person liable for damage under Article 3 of the same Act pursuant to Article 31 (1) of the same Act. However, if the damage obligor is a relative living together with the victim, it is anticipated that the victim would not waive the right to claim compensation or exercise his/her right with his/her intention. If the assistance business operator grants the right expected not to be exercised by the victim by subrogation, the victim would actually result in the same act as not receiving the insurance money. This would collect a certain amount of the liability insurance premium to be paid by the vehicle owner as a contribution, and even if having failed to receive the compensation, it would considerably undermine the purpose and utility of the social security system within a certain limit.

[2] In a case where a security business operator under the former Guarantee of Automobile Accident Compensation Act (amended by Act No. 8852 of Feb. 29, 2008) paid medical expenses and compensation in accordance with Article 26 of the same Act for the victim Byung's vicarious exercise of the right to claim compensation for damages against the victim Byung who was a legal operator of the vehicle involved after the victim Byung paid the medical expenses and compensation, the case holding that the obligor for compensation is not allowed to exercise the right to claim compensation for damages on the ground that the victim's joint-living relative is the victim's relative.

[1] Articles 3, 26(1), 31(1), and 37(1) of the former Guarantee of Automobile Accident Compensation Act (amended by Act No. 8852 of Feb. 29, 2008) / [2] Articles 3, 26(1), 31(1), and 37(1) of the former Guarantee of Automobile Accident Compensation Act (amended by Act No. 8852 of Feb. 29, 2008)

[1] Supreme Court Decision 2000Da9116 decided Jun. 23, 2000 (Gong2000Ha, 1748) Supreme Court Decision 2002Da32547 decided Sep. 6, 2002 (Gong2002Ha, 2411)

Plaintiff Co., Ltd. (Law Firm Rate, Attorneys Ma-ju et al., Counsel for the plaintiff-appellant)

Defendant 1 and one other (Attorney Park Jae-young, Counsel for the defendant-appellant)

Seoul High Court Decision 2008Na80915 decided March 17, 2009

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

Article 26(1) of the Guarantee of Automobile Accident Compensation Act (amended by Act No. 8852 of Feb. 29, 2008; hereinafter “the Act”) provides that “In any of the following cases, the Government shall compensate the victim for damage within the limit of insurance proceeds from liability insurance upon the victim’s request.” Article 26(2) provides that “Where a person other than the insured, etc. is liable for damages under Article 3,” and Article 31(1) of the Act provides that “In cases where the Government compensates for damage under Article 26(1), it shall exercise the right of compensation on behalf of the victim within the limit of the amount of compensation.” Article 37(1) of the Act provides that “When the guaranteed business operator has paid compensation to the victim with the duty of guarantee business under Article 26(1) of the Act, the Government shall not allow the victim to exercise the right of compensation within the limit of the amount of compensation to be paid by the victim under Article 31(2) of the Act.” It shall not be deemed that the victim has the right to be paid compensation to the victim under Article 26(31) of the Act.

The court below affirmed the judgment of the court of first instance, based on Article 31 of the Act and Article 682 of the Commercial Act, it rejected the plaintiff's claim of this case where the defendant 2, who was the victim, subrogated to the defendants who were the legal operator of the accident vehicle, seeking the payment of the remainder of 120 million won, excluding the remainder of 20 million won which the defendant 1 voluntarily returned, by exercising the right to claim damages against the defendants who were the legal operator of the accident vehicle, on the ground of Article 31 of the Act and Article 682 of the Commercial Act.

According to the above legal principles and the facts admitted by the court below, such judgment of the court below is justified.

On the other hand, since the payment of compensation to the victim by the assistance business is made by the assistance business operator for self-responsibility under the law, the assistance business operator cannot subrogate the victim pursuant to the provisions of Article 480 or 481 of the Civil Act (see, e.g., Supreme Court Decisions 94Da5327, Nov. 7, 1995; 2007Da28161, 28178, Jul. 26, 2007); thus, the argument in the grounds of appeal on this point is not acceptable.

The court below did not err in the misapprehension of legal principle as alleged in the ground of appeal.

Furthermore, insofar as the Plaintiff cannot exercise the right to claim compensation against the Defendants against the Nonparty, it is difficult to deem that Defendant 1 approved the existence of the above liability against the Plaintiff solely on the ground that Defendant 1 returned part of the amount received as above compensation, etc.

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Chang-soo (Presiding Justice)