[1] The elements for establishing an unfair juristic act, the meaning of "gambling" and "unexperienceed experience"

[2] A person who serves as a basis for determining whether a juristic act by an agent constitutes an unfair juristic act (rain and experience = the agent, and knife = the principal)

[3] The case reversing the judgment of the court below which held that the liability insurer under the Guarantee of Automobile Accident Compensation Act committed an unfair legal act in which the victim's agent agreed on the compensation for damages including the non-committee agreement with the victim

[1] An unfair legal act under Article 104 of the Civil Act is established when there exists an objective imbalance between benefit and benefit in return, and a transaction which has lost balance as such is established when it was conducted by means of gambling, rashness, or experience of the victimized party. The purpose of the act is to regulate gambling, rash, orless experience of the injured party. It is sufficient that the requirement for establishing an unfair legal act is not all required, but only a part of the requirement is met. The term "fambling" can be based on economic cause, and it can be based on psychological or psychological cause. The term "fambling experience" means a lack of ordinary experience. It means not a lack of experience in a particular area, but a lack of ordinary experience in transactions. Whether the injured party was aware of gambling or experience, the age and degree of damage to the injured party to the act and the degree of damage to the property and the degree of damage to the injured party, and whether there was no objective reason for such an act in return to the injured party.

[2] In determining whether a juristic act is an unfair juristic act under Article 104 of the Civil Code in the event of a juristic act by an agent, the rash and experience of the juristic act shall be determined on the basis of the agent, and the pathy shall be determined on the basis of the principal

[3] The case reversing the judgment of the court below which held that the liability insurer under the Guarantee of Automobile Accident Compensation Act committed an unfair legal act to have agreed on the compensation for damages between the victim's agent and the victim's bereaved family member.

[1] Article 104 of the Civil Act / [2] Article 104 of the Civil Act / [3] Article 104 of the Civil Act

[1] Supreme Court Decision 96Da34061 delivered on November 12, 1996 (Gong1996Ha, 3573), Supreme Court Decision 97Da15371 delivered on July 25, 1997 (Gong1997Ha, 2698), Supreme Court Decision 98Da58825 delivered on May 28, 199 (Gong1999Ha, 1279) / [2] Supreme Court Decision 71Da2255 delivered on April 25, 1972 (Gong20-1, 224)

Plaintiff 1 and two others (Attorney Cho Jong-sung et al., Counsel for the plaintiff-appellee)

Korea Fire Marine Insurance Co., Ltd. (Attorney Lee Jong-soo, Counsel for defendant-appellee)

Seoul District Court Decision 2002Na 1603 delivered on June 5, 2002

The part of the judgment below against the defendant is reversed, and that part of the case is remanded to the Panel Division of Seoul District Court.

1. The court below acknowledged that the above amount was received from the defendant on February 23, 200 as to the defendant's defense, because the defendant paid 25,041,020 won to the defendant's non-party 2 who died on September 13, 199 and agreed not to raise any civil or criminal objection after paying damages for the defendant's death on September 13, 199. Since the plaintiffs' lawsuit of this case was in violation of the non-party 1's non-party 1's non-party 2's non-party 1's father's above payment of the above amount to the above non-party 1's non-party 2's non-party 3's non-party 2's non-party 2's non-party 1's non-party 2's non-party 1's non-party 2's non-party 1's non-party 2's non-party 2's non-party 2's non-party 1's non-party 2's non-party 2's non-party 3's non-party 2's non-party 2's non-party 2's damages.

2. Unfair legal acts stipulated in Article 104 of the Civil Act are established when a transaction, which has lost balance as such, has been conducted using gambling, rashness or experience of the victimized party. The purpose of such act is to regulate gambling, rashness or experience of the injured party. It is sufficient not to satisfy all the requirements for establishing an unfair legal act, but to satisfy only some of the requirements. The term "fambling" means "brut situation". It may be based on economic cause, and it may be based on psychological or psychological reason. "unexperience" means a lack of ordinary living experience. It means that a transaction, which has lost balance as such, was conducted by using gambling, rashness or experience of the victimized party. It means that there was a lack of experience in a particular area, and thus, it means that there was 7 years of experience in a juristic act or experience of the injured party, and that there was no objectively 97 Supreme Court Decision on the level of injury to the other party's occupation and performance.

However, according to the facts and records established by the court below, the above non-party 1 directly prepared an agreement on September 13, 199, which provides that the above non-party 1 shall not file a civil lawsuit in the future instead of receiving insurance money of 25,041,020 won from the defendant on February 23, 2000 where five (5) months or more from the date of the accident, and that the above non-party 1 shall not have an elementary school graduate in 1947, but shall have experience in driving for 17 years and agricultural years and 7 years, and that the above non-party 1 shall not have any mental experience at the time of the accident, and it shall not be deemed that the above agreement was reached in light of the economic experience of his agent at the time of graduation of the elementary school.

In addition, according to the records, the defendant judged that the accident of this case occurred due to the unilateral negligence of the above non-party 1 in the agreement of this case, and the victim took advantage of the accident as the wife's wife and did not urge safe driving, etc., the ratio of liability of the perpetrator was limited to 40%, and the defendant calculated insurance money to 25,041,020 won by applying the standard of insurance policy to the above amount. The above non-party 1 naturally responded to the above amount. The defendant's liability insurance amount to be paid at the time was limited to 60,000 won, and the court below decided that it is reasonable to limit the tortfeasor's liability to 70% in consideration of all the circumstances. Accordingly, the court below decided that the amount ordered additional payment in addition to the above agreed amount was 31,346,871 won, and the above limitation of liability is difficult to determine uniformly. Thus, if there were circumstances, it is hard to conclude that there was any imbalance between the plaintiff's situation at the time of the agreement of this case and the bad faith.

Nevertheless, the court below rejected and judged the defendant's defense on the merits that the agreement in this case was null and void solely on the ground as seen earlier. In so doing, there is no error of law by misapprehending the legal principles as to the requirements for establishing an unfair juristic act, or by violating the rules of evidence, which affected the conclusion of the judgment. The ground of appeal assigning this error is with merit.

3. Therefore, the part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the lower court. It is so decided as per Disposition.

Justices Lee Yong-woo (Presiding Justice)