[1] In a case where the victim of a traffic accident was compensated by the perpetrator for the damage exceeding the amount compensated by the Guarantee of Automobile Accident Compensation Business, whether the government is exempted from the liability for compensation due to the Guarantee of Automobile Accident Compensation Business (negative)

[2] The case holding that where the victim of a traffic accident has agreed to refund the full amount of the damage that the victim received when the victim received from the perpetrator, the above agreement applies only when the victim received the damage compensation from the perpetrator for the damage included within the scope of the compensation received from the above guarantor

[1] Articles 26(1) and 28(2) of the Guarantee of Automobile Accident Compensation Act / [2] Articles 28(2) and 31(1) of the Guarantee of Automobile Accident Compensation Act

[1] Supreme Court Decision 2001Da27371 Delivered on July 13, 2001, Supreme Court Decision 2002Da2023 Delivered on June 14, 2002

Dongbu Fire and Marine Insurance Co., Ltd. (Law Firm Hank, Attorneys Cho Jae-chul et al., Counsel for the plaintiff-appellant)

United Kingdom of America

Seoul District Court Decision 2003Na19021 delivered on October 23, 2003

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

Article 26 of the Guarantee of Automobile Accident Compensation Act (hereinafter referred to as the "Guarantee Act") provides that the government shall compensate for the damage of the victim who died or was injured due to an accident caused by the operation of a non-insurance motor vehicle within the limit of the insurance amount of the liability insurance. The main contents of the Guarantee of Automobile Accident Compensation Act (hereinafter referred to as the "Guarantee Business") are to supplement the Motor Vehicle Liability Insurance Act, which is enforced for the purpose of protecting the victim of a traffic accident caused by a motor vehicle or non-insurance.

Article 28(2) of the Act provides that when a victim is compensated for damages under Article 26(1) of the Act from a person who is liable for damage under Article 3 of the Act on the part of the victim, the Government shall be exempted from the responsibility for compensation under Article 26(1) of the Act within the scope of the amount of compensation the victim received. However, even if the victim is compensated for damages from the perpetrator, where the victim is compensated for damages exceeding the amount of compensation compensated by the assistance program, the compensation for damages under Article 26(1) of the Act does not constitute the case where the victim is compensated for damages under Article 26(1) of the Act. Thus, the Government shall not be exempted from the liability for compensation by the assistance program (see Supreme Court Decisions 2001Da27371, Jul. 13, 2001; 2002Da20223, Jun. 14, 2002).

In light of the adopted evidence, if the plaintiff and the defendant agreed to immediately return the full amount of the compensation received by the plaintiff and the defendant to the plaintiff, but interpreted that the amount of the compensation received by the defendant from the plaintiff should be returned to the plaintiff without any condition, this agreement cannot be recognized in violation of the purport of the security business and the purport of the compensation system which provides the adequate compensation for damages. Thus, it is reasonable to interpret that the above agreement applies only when the defendant received the compensation for the damages included within the scope of the compensation from the plaintiff from the tortfeasor. Since the actual amount of the accident exceeds the compensation received from the plaintiff and the amount of the agreement received from the tortfeasor, the agreement between the defendant and the tortfeasor was made around January 26, 200, which was the date when the defendant requested the plaintiff to pay the compensation, and it was clearly stated that the defendant would be entitled to the compensation from the plaintiff and the defendant, including the actual amount of the compensation suffered by the defendant, without any agreement between the plaintiff and the defendant, to the extent that the defendant would be entitled to the compensation from the tortfeasor.

The above fact-finding and judgment of the court below are justified in accordance with the above legal principles, and there are no errors in the misapprehension of legal principles as to Article 28 (2) of the Act, as otherwise alleged in the ground of appeal.

3. Conclusion

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

Justices Jack-dam (Presiding Justice)