(a) If a person who caused an insured incident falls under the “insured” under Article 682 of the Commercial Act, whether the insurer exercises the insurer’s subrogation right;

(b) Where the right to claim damages against a third party by the insured ceases to exist by prescription, the father's subrogation, and the insurer's starting point and period of extinctive prescription of the right to claim damages on subrogation

A. The subrogation of the insurer under Article 682 of the Commercial Act is a system where the insurer who paid the insured amount acquires the right of the policyholder or the insured to the third party when the loss caused by an insured accident occurred due to the act of the third party. Therefore, if the person who caused the insurance accident falls under the “insured” other than the “third party” under the above law, the insurer cannot exercise the right of subrogation of the insurer against the insured person.

B. Article 682 of the Commercial Act merely provides that the insurer shall obtain the claim within the scope of the insured amount paid on the premise that the insured et al. has a claim for damages against a third party. Thus, if the claim for damages against the third party such as the insured et al. has expired due to the prescription, there is no room for subrogation by the insurer. In this case, the starting point of the extinctive prescription of the claim for damages that

(b)Article 682 of the Commercial Code, Section 766 of the Civil Code;

A. Supreme Court Decision 90Da10063 delivered on November 26, 1991 (Gong1992, 274) (Gong1992, 274) 91Da7828 delivered on January 12, 1993 (Gong1993, 682) 80Da1643 delivered on July 7, 1981 (Gong1981, 14150)

[Defendant-Appellant] Korea Automobile Insurance Co., Ltd., Counsel for defendant-appellant

Defendant 1 and one other

Jeonju District Court Decision 92Na2175 delivered on November 19, 1992

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

On the first ground for appeal

1. Subrogation of the insurer under Article 682 of the Commercial Act is a system where the insurer who paid the insured amount acquires the right of the policyholder or the insured to the third party when the loss caused by an insured accident occurred due to the act of the third party. Thus, if the person who caused the insurance accident falls under the “insured” other than the “third party” under the interpretation of the insurance contract, the insurer cannot exercise the right of subrogation of the insurer against the insured accident (see Supreme Court Decision 90Da10063 delivered on Nov. 26, 1991).

2. According to the facts established by the court below, the previous North 7rd 2602, which is the vehicle involved in the accident of this case, owned the vehicle of this case, and the driver is the defendant Park Gin-wing, who is an employee of the above Jin-wing month. The driver was the defendant Park Gin-wing, who was not a driver's license on March 20, 1985, and caused the accident of this case by having the defendant 1 drive the above vehicle temporarily, and caused the accident. The plaintiff company entered into a comprehensive automobile insurance contract with the automobile of this case as the insured vehicle between January 18, 1985 and January 18, 1985, with the insurance period from January 18, 1985 to July 18 of the same year.

3. According to the above circumstances, the personal compensation of the automobile comprehensive insurance is a compensation for damages sustained by the insured as a result of legal liability for damages caused by the insured's death or injury, and the insured in the personal compensation is a relative who is using or managing a motor vehicle with the name of the insured specified in the insurance policy, a person who is using or managing the motor vehicle with the permission of the registered insured, a person who is in charge of the use or management of the motor vehicle with the permission of the registered insured, an employer of the registered insured (if the registered insured is being used in the duties of the employer), and a person who is driving the motor vehicle for each of the above insured (including a driver), and the defendant Park principal is an insured person who is a registered insured person and falls under the "person driving the motor vehicle for the insured" as an insured person for the first advanced month, and it cannot be viewed as a "third person" specified in Article 682 of the Commercial Act. Thus, the plaintiff, the insurer, cannot exercise the insurer's right of subrogation against the above defendant.

Therefore, the judgment of the court below to the same purport is just, and there is no error in the misapprehension of the legal principles as to the third party in subrogation insurance, or in the misconception of the interpretation of the automobile comprehensive insurance terms or in the rules of evidence.

4. The argument is based on the premise that the above defendant is a person who uses or manages an automobile with the consent of the above defendant in the month of demotion and that the above defendant is not a third party in subrogation of the insurer, and the above defendant cannot be regarded as a person who uses or manages an automobile with the consent of the registered insured, but the judgment of the court below cannot be viewed as the same purport.

Therefore, there is no reason to discuss.

On the second ground for appeal

1. According to Article 682 of the Commercial Code, in cases where damage was caused by a third party's act, the insurer who paid the insured amount shall acquire the rights of the policyholder or the insured with respect to the third party within the limits of the amount paid. However, this merely purports to acquire the claim within the limits of the insured amount paid on the premise that there was a claim for damages against the third party by the insured, etc. (see Supreme Court Decision 80Da1643, Jul. 7, 1981). Thus, if the claim for damages against the third party such as the insured has expired due to the statute of limitations, there is no room for the insurer to subrogate it. In this case, the starting point of the statute of limitations for the claim for damages

2. According to the facts established by the court below, Defendant 1, who is not an employee of the above month of the insurance contract of this case, who is the insured of the insurance contract of this case, was driving an insured vehicle with the consent of the defendant Park Jong-ju, who is his employee, and caused an accident due to the negligence of driving and caused damages to the defendant 1 by imposing the liability for damages. Thus, it is evident that the damages claim against the defendant 1 was caused by tort. Thus, barring any special circumstance, the court below's decision that the above damages claim for damages was extinguished after the completion of the statute of limitations on March 21, 1988 after the date following the accident, on the premise that the defendant 1 was aware of the damages and the perpetrator at the time of the above accident, is justified.

3. The issue is that the insurer’s right to obtain by subrogation is not a claim for damages against a third party or a modification thereof, but a special right that differs in its legal nature. Thus, the time of acquisition of the right is the time of payment of insurance money and the time of exercising the right, and the period of extinctive prescription should be ten years, such as the general bond. However, we cannot accept it.

There is no reason for this issue.

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.

Justices Final Young-young (Presiding Justice)