Non-school-Free Bank of Korea (Law Firm Multi-Rate, Attorney Park Jong-young, Counsel for defendant-appellant)

Hyundai Marine Fire Insurance Co., Ltd. and others (Law Firm Changwon, Attorneys White-seok et al., Counsel for the plaintiff-appellant)

Defendant 2 (Law Firm Han-ro, Attorney Kim In-ok, Counsel for defendant-appellant)

June 29, 2016

Changwon District Court Decision 2014Kadan16893 decided November 12, 2015

1. Of the judgment of the court of first instance, the part against the Defendants in excess of the amount ordered to be paid below shall be revoked and the Plaintiff’s claim corresponding to the revocation

The Defendants jointly pay to the Plaintiff 5,648,340 won with 5% interest per annum from July 20, 2014 to August 24, 2016, and 15% interest per annum from the following day to the date of full payment.

2. The plaintiff's appeal and the defendants' remaining appeal are dismissed, respectively.

3. Of the total litigation costs, the part arising between the Plaintiff and the Defendant Hyundai Marine Fire Insurance Co., Ltd. shall be borne by the Plaintiff; the remainder shall be borne by the Defendant Hyundai Marine Fire Insurance Co., Ltd.; the Plaintiff and Defendant 2 shall be borne by the Plaintiff; the remaining part arising between the Plaintiff and Defendant 2, respectively.

Purport of claim

The Defendants jointly and severally pay to the Plaintiff 35,510,000 won with 5% interest per annum from July 20, 2014 to the service date of a copy of the complaint of this case, and 20% interest per annum from the next day to the day of full payment.

Purport of appeal

A. Plaintiff: Revocation of the part of the judgment of the court of first instance against the Plaintiff corresponding to the part ordering additional payment. Defendant Hyundai Marine Fire Insurance Co., Ltd. shall pay 5% per annum from July 20, 2014 to the service date of a duplicate of the complaint of this case, 20% per annum from the next day to September 30, 2015, and 15% per annum from October 1, 2015 to the day of complete payment.

B. Defendant Hyundai Marine Fire Insurance Co., Ltd.: The part of the judgment of the first instance against Defendant Hyundai Marine Fire Insurance Co., Ltd. shall be revoked, and the Plaintiff’s claim corresponding to the above revocation

C. Defendant 2: Revocation of the part against Defendant 2 among the judgment of the first instance, and the Plaintiff’s claim corresponding to the above revocation portion is dismissed.

1. Basic facts

A. The Plaintiff is a corporation for the purpose of the business of transporting passengers and the business of arranging domestic travel (vehicle number 1 omitted), and is the owner of tourist buses (hereinafter “victims”). The Defendant Hyundai Marine Fire Insurance Co., Ltd. (hereinafter “Defendant Company”) is a corporation running non-life insurance business, such as sea, fire, and automobiles, which has concluded an automobile insurance contract for Non-party 1’s (vehicle number 2 omitted) dump trucks (hereinafter “instant dump trucks”), and the Defendant 2 is the driver of the instant dump vehicle.

B. On July 20, 2014, Defendant 2 shocked the instant damaged vehicle due to the negligence of driving the central line while driving the instant Maritime Vehicle at the Cheongyang-gun, Cheongyang-gun, Cheongyang-do, by shocking the Cheongyang-do (hereinafter “instant accident”).

C. The Defendant Company spent KRW 80,105,640 in total as damages related to the instant accident.

【Ground of recognition】 The fact that there has been no dispute, Gap's 1 through 4, Eul's 2 and 3(including paper numbers), the purport of the whole pleadings

2. Determination

(a) Occurrence of liability for damages;

According to the above basic facts, the instant accident occurred due to Defendant 2’s negligence in driving the instant Maritime Vehicle by breaking the central line. Thus, Defendant 2, the driver of the instant Maritime Vehicle, and Defendant Company, the insurance company of the instant Maritime Vehicle, are jointly liable to compensate the Plaintiff for the damages incurred by the instant accident, which is the owner of the instant Maritime Vehicle, pursuant to Article 10(1) of the Guarantee of Automobile Accident Compensation Act and Article 724(2) of the Commercial Act.

(b) Scope of damages;

(i) the rent on the day of the accident;

According to Gap evidence Nos. 5 and 11, the plaintiff can be acknowledged that the plaintiff borrowed one chartered bus from Samsung Tourism and paid rent of KRW 800,000 for the passengers who were on board the damaged vehicle of this case on the date of the accident for their returning home. Thus, the defendants are liable to compensate for the amount equivalent to the above rent.

2) Loan charges from July 21, 2014 to October 11, 2014

A) Party’s assertion

The Plaintiff asserts that since July 21, 2014 to October 11, 2014, the period for repairing the instant damaged vehicle due to the instant accident, the chartered bus was leased with the amount of KRW 350,000,000,000 per day from July 21, 2014 to October 11, 201, the Defendant is obligated to pay the Plaintiff KRW 29,050,000, which is the aggregate of the above lending charges. As such, in the event of leasing a chartered bus, the operator of the bus is also bound to lease the bus inevitably, and thus, the operator’s labor cost included in the above lending amount falls under the pure cost necessary for leasing the same vehicle, and even if the Plaintiff deducts the labor cost of the household driver, the Plaintiff’s actual labor cost should be based on the actual labor cost of the driver employed.

With regard to this, the Defendants asserted that the Plaintiff has no obligation to compensate for the rent for the part exceeding 30 days, which is the period of recognition of the rent under the terms and conditions of the Defendant company, since the repair period has been extended due to the reasons such as delay in the supply of parts of the repair company, etc.

B) Relevant legal principles

A borrower may claim for the payment of rent and lease fees in lieu of temporary rental damages (see Supreme Court Decision 92Da6112, May 12, 1992) as damages for the period of repairing a motor vehicle damaged by a tort, where the victim claims the perpetrator or insurer for the costs of borrowing and lending another motor vehicle of the same kind and class for the period of time for the reason that the victim is unable to use the motor vehicle for a certain period of time due to damage caused by an accident, as damages or insurance money, not only need the borrowing and lending of the relevant motor vehicle, but also the amount of the borrowing and lending cost may be claimed. If there is a dispute between the parties as to the necessity of borrowing and lending and the reasonableness of the amount of borrowing and lending costs, the borrower may claim for such expenses and burden against the lessee (see Supreme Court Decision 2012Da67399, Feb. 15, 2013).

C) Determination

(1) As to the necessity of lending and borrowing and the reasonableness of the amount of lending and borrowing expenses

Considering the overall purport of arguments and arguments as to the facts as to Gap evidence 6, 7, and 12-1 and 2, the court of the first instance for high-speed tourism corporation and non-party 2 after the accident in this case, the plaintiff paid 83 days in total to repair the damaged vehicle after the accident in this case. During that period, the plaintiff shall pay 350,000 won for the same kind and kind of damaged vehicle as the damaged vehicle in this case, such vehicle in this case, and driving engineer, and paid 29,050,00 won as the rent. Further, considering the above facts, Gap evidence 13 through 18, Eul evidence 30-1, Eul evidence 30-1, Eul evidence 7, and the fact that the plaintiff paid 0-day rent to the plaintiff in this case after the accident in this case, the plaintiff's temporary rent in this case is recognized as 00-day rent in this case's 30-day rent in this case's service contract, and 0-day rent in this case's rent in this case.

(2) As to the lending period

The period of lease and lease, which serves as the basis for calculating the amount of damages, shall be the period during which the plaintiff could not use the vehicle due to the repair, which shall be limited to a reasonable period necessary for the repair of the vehicle, and it shall be limited to the reasonable period required for the repair of the vehicle. In other words, under the automobile insurance clause of the defendant company, the 60-day period shall be determined in consideration of the following circumstances, taking into account the following factors: (i) the period of recognition of the rent under the automobile insurance contract of the defendant company is the period until the completion of the repair if the repair is possible; (ii) the period of repair of the damaged vehicle in this case is increased due to the delay in the supply and delivery of the defective parts by the supplier of the parts during the repair of the vehicle; (iii) the period of repair of the damaged vehicle in this case is not all responsible to both the plaintiff and the defendants; and (iii) the calculation of the period of repair of the vehicle

(3) Regarding deduction of expenses for driver's labor

The rent that can be claimed by the owner of the vehicle as compensation for damages refers to pure expenses necessary for leasing the same kind of vehicle as the vehicle in question, and it is reasonable to deem that the owner of the vehicle does not include the expenses that would have been spent while driving the vehicle in question even if the accident did not occur. However, as seen earlier, the Plaintiff paid KRW 350,00 per day as the expenses for leasing the damaged vehicle in question and the same class and the driver of the vehicle in question, and the daily wage of the freight driver in the latter part of the year of 2014 according to the evidence No. 5, as the daily wage of the freight driver in the latter part of 2014 is recognized as the cause of 11,861, and therefore, it is reasonable to deduct the amount equivalent to the daily wage of the freight driver

(4) The theory of lawsuit

Therefore, the Defendants are liable to compensate the Plaintiff for the amount of KRW 21,00,000 (=350,000 per day lending fee x 60 days) for the amount of KRW 6,711,660 for cargo drivers’ wages (11,861 x 60 days) and KRW 3,958,340 (=21,00,000 - 6,611,600 - 10,330,000) paid by the Defendant Company to the Plaintiff as a rent for 60 days. Accordingly, this part of the Plaintiff’s assertion is with merit within the scope of recognition.

3) Business losses on the day of the accident.

Since a business tourist bus is a vehicle that obtains business profits through passenger transport, it is reasonable to view such passive damage as ordinary damages if it is impossible to receive transport charges that had been paid on the day of the accident. According to the evidence No. 10, the Plaintiff entered into a transport contract with Nonparty 3 on July 15, 2014, with the 24 passengers on July 15, 2014, with the 190,000 won between the driving section and the 7rd party, the 100,000 won and the down payment was received, but the Defendants are liable to compensate for the remaining transport charges since they failed to perform their duty due to the instant accident.

4) Carcass damage

A) Party’s assertion

The Plaintiff asserted that the assessed value of the damaged vehicle was KRW 145,00,000 prior to the instant accident, but the assessed value decreased to KRW 130,000,000 even after the instant accident occurred, so the Defendants are liable to compensate the Plaintiff for the difference of KRW 15,00,000, which is the difference.

Accordingly, the Defendants asserted that since the completion of the repair of the damaged vehicle after the accident of this case does not have any portion that could not be repaired, there was no loss that may decline in the value of the exchange in addition to the repair cost, and even if the loss was caused due to the decline in the value of the domestic exchange, this constitutes a special damage. Therefore, it cannot be readily concluded that the Defendants knew

B) Relevant legal principles

In a case where an article is damaged due to a tort, if it is possible to repair it, the cost of repair, if it is impossible to repair it, the decrease in exchange value shall be deemed ordinary damages, and where it is possible to repair it, the damage caused by a decline in exchange value in addition to the cost of repair shall be deemed as special damage (see Supreme Court Decision 2012Da115298, Dec. 11, 2014).

C) Determination

갑 제2호증, 제8호증의 1, 2, 3, 제9호증의 1, 2, 제19호증, 을가 제3호증의 1의 각 기재에 변론 전체의 취지를 종합하면, 이 사건 피해차량이 2012. 6. 1. 등록된 후 약 2년 정도 경과한 후에 이 사건 사고가 발생하였고, 사고 당시 이 사건 피해차량의 시세는 약 145,000,000원 정도였던 사실, 이 사건 사고로 이 사건 피해차량의 좌우 프론트 휀더, 루프패널, 좌우 프론트 사이드맴버 등이 손괴되었고, 피고회사는 2014. 12. 2. 위 피해차량의 수리비로 22,000,000원을 지급하였으며, 위 피해차량의 수리가 완료된 사실이 인정된다. 나아가 위와 같은 차량 수리에도 불구하고 일부 수리가 불가능한 부분이 남아있는지에 관하여 보건대, 위 갑 제19호증의 기재에 의하면 이 사건 사고로 인하여 이 사건 피해차량을 수리하게 되면 주요골격 및 패널의 용접으로 인한 노치효과와 열응력 생성, 인장작업으로 인한 잔류응력 등의 현상으로 인하여 차량의 기계적, 물리적 성질이 변화되고 인장강도, 항복점, 피로강도, 내산화성, 충돌안정성기능 등의 저하로 원상회복이 불가능하다고 하면서도, 그 구체적인 근거는 제시하지 아니하고 있는바, 이 사건 피해차량이 수리 후 정상 사용 중인 이상 달리 위 차량이 수리 후에도 수리가 불가능한 부분이 있거나, 당연히 교환가치가 감소된다고 할 수 없고 그 외 수리비 이외에 교환가치 하락으로 인한 손해가 있음을 인정할 만한 증거가 없다. 따라서 이 부분 원고의 주장은 이유 없다.

C. Sub-committee

Therefore, the Defendants are jointly obligated to pay 5,648,340 won (the lending fee of 800,000 won on the date of the accident + the lending fee of 3,958,340 won for the repair period + business damage of 890,000 won) and to pay damages for delay calculated at the rate of 15% per annum under the Civil Act from the following day of the judgment of this case until August 24, 2016, which is the date of the judgment of this case where it is deemed reasonable for the Defendants to dispute the existence or scope of the obligation.

3. Conclusion

Therefore, the plaintiff's claim of this case is accepted within the scope of the above recognition, and the remaining claims are dismissed as without merit. Since the judgment of the court of first instance is partially unfair with different conclusions, the part of the judgment of the court of first instance which partly accepted the defendant's appeal against the defendants ordering payment in excess of the above amount recognized by the plaintiff is revoked, and the plaintiff's claim corresponding to the revoked part is dismissed, and the plaintiff's appeal and the remaining appeal by the defendants are dismissed as it is so decided as per Disposition.

Judges Cho Soo-eng (Presiding Judge)