[1] The scope of application of the General Automobile Insurance Exemption Clause

[2] Criteria for determining whether an implied approval for driving without a license is granted

[3] The effect of an insurance contract that provides an amount according to the payment standards for insurance money within the scope of compensation (effective) and the scope of insurance money to be paid by the insurer where the insured determines the amount of compensation by agreement with the victim

[1] The general terms and conditions of automobile insurance are applied without any limitation to who is the subject of driving without a license. However, in a case where it is deemed that the provisions of Article 6(1) and (2) and Article 7(2) and 3 of the Act on the Regulation of Terms and Conditions are null and void in light of the principle of trust and good faith, as a provision which loses fairness in respect of driving without a license, but it is valid to the extent that the provision of the insurer’s exemption is interpreted as valid only when a license without a license is made under the explicit or implied approval of the policyholder or the insured.

[2] Since an implied approval of a policyholder or the insured, which is a requirement for the validity of a non-licensed license exemption clause, leads to the application of a non-licensed license clause in the same manner as the case of an explicit approval, it shall be limited to the case where there are circumstances to presume that the intention of approval for the non-licensed driving of the policyholder or the insured is the same as the case in which the intention of approval is explicitly expressed. The existence of such implied approval should be determined by taking into account not only the attitude of the policyholder or the insured, but also all the circumstances such as the relationship between the policyholder or the insured and the non-licensed driver, the situation of the operation and management of ordinary vehicles, the situation in which the non-licensed driving is possible, and the purpose of non-licensed driving as a problem.

[3] With respect to the limit of compensation for personal injury under the general terms and conditions of automobile insurance, an amount calculated according to the standard for payment of insurance money under the "terms and conditions" shall be compensated. However, in case where a lawsuit is filed, the insured shall compensate for damages to the claimant by a final judgment of the court of the Republic of Korea, the above term and conditions are incorporated into the terms and conditions of a contract by agreement between the policyholder who is a party to the insurance contract and the insurer, and as a matter of principle, the insurer determined the insurance premium based on the insurance money to be paid under the above term and conditions and accepted it as the policyholder. Even if the amount calculated according to the standard for payment of insurance money under the above term and conditions is less than the amount recognized by the final judgment of the court, if the insured and the insurer did not reach an agreement on the payment of insurance money, the insured shall not have reached an agreement with the insurer just just because they did not have reached an agreement with the insured, and the remaining amount of compensation for damages may be paid to the insured as part of the insurer, and thus, the insurer shall not be deemed null and void by the insurance clause as mentioned below.

[1] Articles 659(1) and 663 of the Commercial Act, Articles 6 and 7 of the Regulation of Standardized Contracts Act, Article 2 of the Civil Act / [2] Articles 659(1) and 663 of the Commercial Act, Articles 6 and 7 of the Regulation of Standardized Contracts Act, Article 2 of the Civil Act / [3] Articles 719 and 723 of the Commercial Act, Article 6 of the Regulation of Standardized Contracts Act, Article 2 of the Civil Act

[1] Supreme Court Decision 93Da20313 Decided May 10, 1994 (Gong1994Sang, 1632), Supreme Court Decision 94Da47087 Decided July 28, 1995 (Gong1995Ha, 2968), Supreme Court Decision 97Da9390 Decided September 9, 197 (Gong1997Ha, 3048), Supreme Court Decision 97Da38305 Decided January 23, 1998 (Gong1998Sang, 597) 97Da29697 Decided December 24, 1991 (Gong1992, 197Da97979 Decided June 29, 197) 97Da197989 Decided June 197, 197

Plaintiff (Attorney Lee Jong-gu, Counsel for the plaintiff-appellant)

Korea Fire Marine Insurance Co., Ltd. (Attorneys Lee E-young et al., Counsel for the plaintiff-appellant)

Daegu High Court Decision 95Na2778 delivered on July 24, 1996

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Daegu High Court.

The defendant's attorney's grounds of appeal are examined.

On the first ground for appeal

Article 10 (1) 6 of the Terms and Conditions of Individual Automobile General Insurance No. 10 (1) of the "no compensation shall be made for any damage caused by an accident caused by a driver without a license." However, in a case where the so-called non-license exemption clause applies without limitation to who is the subject of a non-license, or where there is no possibility of controlling or managing the policyholder or the insured with respect to a non-licenseless driving, the above provision shall be deemed null and void in light of the provisions of Article 6 (1), (2), Article 7 subparagraph 2, and 3 of the Terms and Conditions Regulation Act (hereinafter only referred to as the "Terms and Conditions Regulation Act") as a provision which lose fairness against the principle of good faith, but it shall be deemed null and void within the scope of interpreting the provision which provides for the insurer's exemption, such as the case where a non-licenseless driving was made under the explicit or implied approval of the policyholder or the insured. It shall be deemed as valid within the same extent as the case of a non-licenseless driver's decision No. 97.

According to the reasoning of the judgment below, the court below determined that: (a) Nonparty 1, who acquired a driver's license prior to the accident, was a person who was driving the vehicle before the accident; (b) caused an injury to Nonparty 1 on two occasions between May 25, 1990 and May 25, 193; and (c) discovered while driving the vehicle while drinking; and (d) the driver's license was revoked on July 18, 193; (b) the Plaintiff, the insured of the insurance contract, did not allow the said Nonparty 1 to operate the instant insured vehicle; (c) the said Nonparty 1 did not actually operate the said vehicle; and (d) after the revocation of the above driver's license, Nonparty 1 did not drive the said vehicle to Nonparty 2, who was his her mother; and (d) determined that it was difficult to see that Nonparty 1 was operating the said vehicle as his her child or her child, and that it was difficult to see the Plaintiff's vehicle's operation without his consent to do so on the following day of the accident.

In light of the records, the above fact-finding and judgment are just, and there is no error of law that misleads the facts against the rules of evidence or fails to exhaust all necessary deliberations.

The grounds of appeal disputing this issue cannot be accepted.

On the second ground for appeal

According to the reasoning of the judgment below, the court below stated that "the limit of compensation for personal damage under Article 15 subparagraph 1 of the General Insurance Clause of this case" shall be compensated for the amount calculated according to the standard for payment of insurance proceeds under the above General Insurance Clause, but if a lawsuit is filed, the insured shall be compensated for damages by the final judgment of the court of the Republic of Korea. The purport of the above provision is that the insurable value is not determined in advance under the General Insurance Contract for Automobile in principle, unless otherwise agreed by the parties, the amount of compensation for the insured shall be determined by the final judgment of the court, and ultimately, the insurer shall be bound to pay the insurance proceeds to the insurer every time it goes against the purpose of the General Insurance Contract for Automobile Act, which is to compel the parties to bear the burden of expenses, so it shall be deemed that the insurer shall be entitled to receive compensation for damages without reasonable consent, and if the insured shall be subject to the above general Insurance Contract in accordance with the Unfair Insurance Contract and the Compensation for Damages Act, which are clearly unfavorable to the victim, the result of which the insured shall not be paid for damages under the General Insurance Contract.

However, the above insurance terms and conditions are incorporated into the contents of the contract by agreement between the policyholder and the insurer who are the party to the insurance contract, and in principle, it appears that the insurer determined the insurance premium based on the insurance money to be paid under the above terms and conditions and accepted it as the policyholder. Even though the amount calculated according to the insurance payment standards stipulated under the above insurance terms and conditions is less than the amount recognized by the final judgment of the court, if there is no agreement between the insured and the insurer on the payment of the insurance money, the insured shall compensate for the amount of damages by the court decision, unless there is an agreement with the insurer, so the insured shall not be a written agreement rapidly with the victim because it does not reach an agreement with the insurer, and the remaining amount of damages paid to the victim and the insurer may take measures such as receiving the lawsuit from the insurer. In light of the above, it shall not be deemed null and void because the above provisions on the payment standards of insurance money

Therefore, in a case where the amount of compensation is determined by a written agreement between the plaintiff who is the insured and the victim without a final judgment, the defendant, who is the insurer, is liable to pay the insurance money within the limit of the amount calculated according to the insurance payment criteria stipulated in the above insurance clause (see, e.g., Supreme Court Decisions 86Meu556, Dec. 23, 1986; 93Da11807, Apr. 12, 1994; 95Da1675, Nov. 7, 195).

Therefore, the judgment of the court below to the different purport cannot be said to have erred by misapprehending the legal principles on Article 6 of the Act on the Regulation of Terms and Conditions or on the interpretation of general terms and conditions of automobile insurance, and it is clear that this affected the judgment.

The appeal pointing this out is with merit.

Therefore, the part of the judgment below against the defendant is reversed, and that part of the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Seo Sung-sung (Presiding Justice)