The meaning of "transfer of a motor vehicle" as stipulated in the automobile comprehensive insurance clause that provides for the insurer's exemption from liability for an accident occurred after the insured motor vehicle is transferred, and whether the above provision of the contract applies to the case where the insured changes only his/her registered name and actually owns the motor vehicle and controls its operation (negative)

Article 105 of the Civil Act, Articles 659 and 679 of the Commercial Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Lee Gyeong-soo et al., Counsel for plaintiff-appellant)

Newdong Fire and Marine Insurance Co., Ltd. (Law Firm Han-ro, Attorneys Kim Shin-ok et al., Counsel for the defendant-appellant)

Twin Fire Marine Insurance Co., Ltd. (Attorney Kang Sung-sung, Counsel for defendant-appellant)

Seoul High Court Decision 2004Na66751 Delivered on October 6, 2005

The judgment below is reversed and the case is remanded to Seoul High Court.

We examine the grounds of appeal.

1. On September 18, 200, the lower court determined that, even if Nonparty 1 borrowed 3 million won from Codefendant 2 of the first instance trial on December 14, 200 and the above borrowed money could not be repaid within the due date, the agreement was made to transfer the ownership of the instant vehicle, and issued to Codefendant 2 with the certificate of personal seal impression on August 10, 200, the value of the instant vehicle was 2690,000, and the Codefendant 2 did not pay the above loan to Nonparty 1 on December 22, 200, the agreement was not reached to recognize the ownership of the instant vehicle and the ownership of the instant vehicle on January 5, 200, which did not change the ownership of the instant vehicle to Nonparty 1’s order to transfer the ownership of the instant vehicle in lieu of the foregoing loan to Nonparty 1 on December 26, 200. According to the fact that Nonparty 1 did not have the ownership of the instant vehicle after the due date for the instant accident occurred.

2. However, the lower court’s determination is difficult to accept for the following reasons.

Article 59(2) of the Defendant’s General Automobile Insurance Clause provides, “The Company shall not pay insurance money for any accident that occurred after the insured automobile was transferred.” The transfer of an automobile refers to the operation control condition of the automobile in question and the transfer of corporeal movables, and the transferor means the case where the transferee loses the operation control over the automobile in question and the transferee acquires the de facto operation control. Therefore, the above provision shall not apply to the case where the registered owner changes only the registered owner, possesses the automobile in fact, and controls the operation (see Supreme Court Decision 93Da1480 delivered on June 29, 1993, etc.).

However, according to the facts found by the court below, the non-party 1 borrowed 3 million won from the co-defendant 2 on September 2000, and delivered documents necessary for the transfer of the ownership of the vehicle involved in the accident to the co-defendant 2 for the collateral. The non-party 1 did not pay the above loan, and the non-party 2 changed the name of the owner in the register of automobile by using a sales contract held in advance on January 5, 2001, but the non-party 1 refused the request for continuous delivery of the vehicle by the co-defendant 2. According to the records, the non-party 1 refused the delivery of the vehicle to the co-defendant 2, and the non-party 3, who was approved by the non-party 2, was the non-party 2 while driving the vehicle involved in the accident of this case and caused the accident of this case. Thus, it cannot be deemed that the non-party 1 did not have any control over the operation of the motor vehicle in this case at the time of the accident of this case, and the non-party 2 was the owner.

Nevertheless, the judgment of the court below which judged that the defendant was exempted from liability on the premise of a different judgment is erroneous in the misunderstanding of facts against the rules of evidence or in the misunderstanding of legal principles as to the insurer's exemption from liability.

3. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Si-hwan (Presiding Justice)