Plaintiff (Attorney Han-hee et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm Shin, Attorneys Kim Chang-soo, Counsel for defendant-appellant)

June 13, 2008

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendant shall pay to the plaintiff 78,239,290 won with 6% per annum from September 3, 2001 to the date of this judgment, and 20% per annum from the next day to the date of full payment.

1. Basic facts

(a) Conclusion of insurance contracts;

On June 7, 2001, the Plaintiff entered into a comprehensive insurance contract with the Defendant for business purpose, which includes a special agreement on coverage by non-insurance vehicles (hereinafter “instant insurance contract”), and the main contents are as follows.

(1) Insured: the Plaintiff;

(b) Insured motor vehicle: The insured motor vehicle owned by the plaintiff (vehicle number 1 omitted)

(3) Insurance period: from June 7, 2001 to January 10, 2002

(4) The content of an insurance contract: when the insured has died or died of an accident caused by a motor vehicle other than the insured motor vehicle that has not been covered by the motor vehicle insurance II or a mutual aid contract, or a motor vehicle that has not been covered by the motor vehicle insurance substitute compensation II or a mutual aid contract, the insurer shall, if any, compensate for the damage within the maximum of 200 million won per person of the insured in accordance with the common terms and conditions of the automobile insurance.

(b) Occurrence of insurance accidents;

(1) On September 3, 2001, Nonparty 2, while under the influence of alcohol at KRW 02:45%, driven (vehicle number 2 omitted) Poter freight (hereinafter “instant freight”) owned by Nonparty 3 without the driver’s license, due to Nonparty 2’s negligence of neglecting the duty of front-time watch while driving the first-way truck on the road located in the Pung-dong, Chungcheongnam-do, Chungcheongnam-do, Chungcheongnam-do, Chungcheongnam-do, Yan-do, the flow of the first-way truck on the road at the Pung-do, Chungcheongnam-do, and due to the negligence of failing to properly operate the steering and operation of the steering system, caused the Plaintiff, who was on the top of the road along the right side of the said truck, to suffer injury, such as the front-party 2, etc. (hereinafter “accident”).

(2) Around August 30, 2001, Nonparty 3 entered into an insurance policy (personal compensation I) with Nonparty 1 Company on the instant cargo vehicle as an insurable vehicle.

[Reasons for Recognition] Facts without dispute, Gap evidence 1 to 4, Gap evidence 10-1 to 3, Eul evidence 2, the purport of the whole pleadings

C. Grounds for liability

According to the above facts, the plaintiff suffered injury due to the instant cargo vehicle, which is an non-insurance vehicle stipulated in the insurance contract within the insurance period of the insurance contract of this case. Thus, the defendant is obligated to pay the non-insured injury insurance money (hereinafter "insurance money of this case") for the damage suffered by the plaintiff, the insured, in accordance with the payment criteria of insurance money stipulated in the common terms of automobile insurance.

2. Judgment on the parties' arguments

A. The defendant's defense of extinctive prescription

(1) The argument

The defendant asserts that the insurance claim of this case is extinguished if it is not exercised for two years, and the starting point of the statute of limitations shall be the date of occurrence of the insurance accident. Since the lawsuit of this case was filed on January 16, 2007, which was more than two years after September 3, 2001, which was the date of the accident of this case, the insurance claim of this case was extinguished after the completion of the statute of limitations.

(2) Determination

① Article 62 of the Commercial Act, which provides for the period of extinctive prescription, such as the right to claim the amount of insurance, provides for all non-life insurance and personal insurance. Barring any special provision, barring any special provision, even if the insurance based on the special agreement on accident security by an non-insured automobile actually compensates for the lost damage which cannot be compensated due to the insured’s death or injury caused by an accident caused by a non-insured automobile, such right to claim insurance shall expire unless it is exercised for two years since it is not different from the right to claim the amount of insurance under Article 662 of the Commercial Act. The right to claim insurance can be exercised from the time when the occurrence of the insurance accident becomes specific and conclusive due to the occurrence of the insurance accident, barring any special circumstance (see Supreme Court Decision 9Da6878, Mar. 23, 200).

② On September 3, 2001, the fact that the Plaintiff suffered injury, such as injury to the right upper pelle executives by the accident caused by the instant cargo vehicle, which is an non-insurance vehicle stipulated in the instant insurance contract, is shown in the record that the instant lawsuit was filed on January 16, 2007, which was 2 years after the lapse of 2 years from the instant lawsuit. Thus, the instant insurance claim is deemed to have already expired prior to the instant lawsuit, unless there exists any ground to interrupt the statute of limitations, and therefore, the Defendant’s defense is with merit.

B. Re-appeal by the Plaintiff’s interruption of extinctive prescription

(1) First, the Plaintiff asserted that, around February 18, 2005, the extinctive prescription period of the instant insurance claim was interrupted since the Defendant renounced the benefits of the completed extinctive prescription or approved the aforementioned insurance claim payment liability by paying the sum of KRW 1,361,790 out of the medical expenses of the instant insurance claim.

According to the evidence evidence Nos. 14, 14, and 1, the defendant paid 1,361,790 won to the plaintiff of Jan. 11, 2005. According to the above facts, the defendant's approval of the above insurance money payment obligation after the expiration of the statute of limitations seems to have waived the benefit of the statute of limitations. On the other hand, if the defendant approved the obligation to the creditor after the expiration of the statute of limitations and renounced the benefit of the statute of limitations, the extinctive prescription may proceed again, and the debtor may invoke the re-extinctive prescription again. Accordingly, the lawsuit of this case was filed on Jan. 16, 2007 after two years have passed since the defendant approved the above insurance money payment obligation. Thus, the plaintiff's re-claim of this case has no merit.

(2) In addition, on June 1, 2006, the Plaintiff filed a lawsuit against Nonparty 1 Co., Ltd., the liability insurer of the instant cargo vehicle against the Defendant around June 1, 2006, which was pending in the lawsuit for damages claim, the Plaintiff issued a notice of lawsuit to the Defendant. The notice of lawsuit not only has the effect of provisional interruption of prescription as a peremptory notice, but also has the effect of peremptory notice due to the notice during the lawsuit pending in the lawsuit, and thus, the statute of limitations for the instant insurance claim was interrupted at that time.

In light of the records of evidence No. 16-6, the plaintiff asserted that "the defendant is liable to pay insurance money only within the limit of liability insurance amount out of the plaintiff's damages suffered by the accident of this case" around June 1, 2006, when the lawsuit was pending in the lawsuit for damages claim of this court No. 2005Da10469, the plaintiff had the right to claim the insurance money of this case against the defendant for damages exceeding the limit of liability insurance amount out of the plaintiff's damages suffered by the accident of this case. The scope of the liability to pay insurance amount is determined according to the limit of the liability insurance amount to be borne by the non-party 1 corporation. Thus, since the scope of the liability to pay insurance amount is determined in accordance with the limit of the liability insurance amount to be borne by the non-party 1 corporation, the defendant who has interest in the result of the lawsuit of this case shall be notified of the lawsuit of this case, but the notice of lawsuit does not have the effect of interruption of prescription except where there is a explicit provision (the Bills of Exchange Act and Check Act).

(3) Lastly, while Nonparty 2, who is the driver of the instant truck, was unable to completely memory the accident while under the influence of alcohol, the Plaintiff completely denied that the Plaintiff was not in driving the said truck until the conviction became final and conclusive due to the violation of the Act on Special Cases concerning the Settlement of Traffic Accidents around July 28, 2006. The Plaintiff also could not completely memory the circumstances of the accident on the wind that the Plaintiff was under the influence of alcohol. However, it is impossible for Nonparty 2 to exercise the insurance claim of this case against the Defendant at any time until the conviction on the violation of the Act on Special Cases concerning the Settlement of Traffic Accidents by Nonparty 2 becomes final and conclusive. As such, it is not possible for the Plaintiff to exercise the insurance claim of this case, such as where Nonparty 2, who is the driver of the instant truck, could not change his position as the perpetrator at any time until the conviction on the violation of the Act on Special Cases concerning the Settlement of Traffic Accidents, etc.

According to the plaintiff's evidence Nos. 2 and 10-1 through 3, the non-party 2 asserted that he did not drive the cargo of this case after the accident of this case while he was under the influence of alcohol at the investigation agency after the accident of this case, and he did not drive the cargo of this case. It is acknowledged that he did not drive the cargo of this case. Meanwhile, even during the trial process, it is possible to consider the whole purport of arguments as a whole. In other words, it is difficult to say that the plaintiff's dismissal of the insurance claim of this case was not possible after the accident of this case from 200 to 200. The plaintiff's dismissal of the insurance claim of this case cannot be viewed as a non-party 2. The plaintiff's dismissal of the insurance claim of this case was affirmed by the court below 200 to 200, the non-party 204.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed without any further review as to the scope of the insurance money payment liability of this case. It is so decided as per Disposition.

Judges Han Han-Gyeong