[1] Even if the actual damage suffered by the victim of a traffic accident exceeds the amount eligible for compensation or compensation under other Acts, whether the government is exempted from liability for compensation within the scope of the amount eligible for compensation or compensation by the victim under Article 28(1) of the former Guarantee of Automobile Accident Compensation Act (affirmative)

[2] Whether Article 742 of the Civil Code applies to a case where the obligor did not know that the obligor did not have any obligation (negative), and whether the burden of proof is borne (=the point of denying the claim for return)

[1] Article 26 (see current Article 30) and Article 28 (1) (see current Article 36 (1)) of the former Guarantee of Automobile Accident Compensation Act (wholly amended by Act No. 9065, Mar. 28, 2008) / [2] Article 742 of the Civil Act; Article 288 of the Civil Procedure Act

[1] Supreme Court Decision 2004Da35113 Decided April 15, 2005 (Gong2005Sang, 736) / [2] Supreme Court Decision 97Da58453 Decided November 13, 1998 (Gong1998Ha, 2858) Supreme Court Decision 2006Da40171 Decided September 28, 2006

ELA M&D Co., Ltd. (Law Firm Jeong, Attorney Park Jong-young, Counsel for the plaintiff-appellant)

Defendant 2 and two others

Busan District Court Decision 2009Na11287 Decided October 29, 2009

All appeals are dismissed. The costs of appeal are assessed against the Defendants.

The grounds of appeal are examined.

1. The purpose of the Guarantee of Automobile Accident Compensation Act (wholly amended by Act No. 9065, Mar. 28, 2008; hereinafter “Guarantee Business”) is to compensate within the insurance amount of liability insurance for damage of the victim who died or was injured due to an accident caused by the operation of an uninsurance motor vehicle, the government is not aware of the owner of the motor vehicle, or it is not aware of the owner of the motor vehicle, and to supplement the motor vehicle liability insurance system enforced by law for the purpose of protecting the victim of a traffic accident caused by a motor vehicle or non-insurance motor vehicle. Article 28(1) of the Guarantee of Automobile Accident Compensation Act provides that the victim shall be exempted from liability for compensation within the scope of the amount of compensation the victim receives. This provision provides for adjustment relations with the payment of compensation under other Acts, etc. In case the victim is able to obtain compensation under other Acts, the government shall not be held liable for remedy from the victim under other Acts (see Article 28(1) of the Guarantee Business Act).

In light of the purport of such a provision of the Act, even if the actual damage of the victim exceeds the amount entitled to compensation or compensation under other Acts, the Government shall be exempted from liability for compensation to the extent of the amount entitled to compensation or compensation by the victim under Article 28(1) of the Act. Thus, even if the amount entitled to compensation or compensation under other Acts cannot be compensated for all actual damage, the victim may claim remainder after deducting the amount entitled to compensation or compensation under other Acts from the amount entitled to compensation under other Acts within the extent of actual damage, even if the amount entitled to compensation or compensation under other Acts cannot be compensated for all actual damage.

The court below held that the defendants are obligated to return excess compensation paid to the plaintiff as unjust enrichment in accordance with the above legal principles, on the ground that the defendants were exempted from the amount corresponding to KRW 68,880,310, among the compensation amount of KRW 100,000,00,000, which is the successor to the business of assistance in receiving KRW 68,880,310,000, which is the limit of the insurance amount for the accident of this case caused by the accident of this case caused by the accident of this case, and the defendants are obligated to pay only KRW 31,119,69,00 (= KRW 10,00,000 - KRW 68,880,310).

2. Article 742 of the Civil Act concerning repayment of non-debts applies to cases where the person who performed the obligation knew that he did not have any obligation, and where he did not know that he did not have any obligation, regardless of whether there was negligence (see Supreme Court Decision 97Da58453, Nov. 13, 1998). The burden of proof as to the fact that the person who performed the obligation knew that he did not have any obligation exists in the part of denying the right to claim the return (see Supreme Court Decision 2006Da40171, Sept. 28, 2006).

Examining the reasoning of the judgment below in light of the records, the court below's rejection of the defendants' assertion of non-performance on the grounds as stated in its reasoning is just in accordance with the above legal principles, and there is no error of law by misapprehending the legal principles or omitting judgment

3. Therefore, all appeals are 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 on the bench.

Justices Shin Young-chul (Presiding Justice)