Samsung Fire & Marine Insurance Co., Ltd. (Attorney Yoon Jong-dae, Counsel for defendant-appellant)

ELa District Damage Insurance Co., Ltd. (Law Firm Duo, Attorney Kim Jung-chul, Counsel for the plaintiff-appellant)

May 18, 2011

1. The defendant shall pay to the plaintiff 5,298,010 won with 5% interest per annum from December 1, 201 to March 15, 201, and 20% interest per annum from the next day to the day of complete payment.

2. The costs of the lawsuit are assessed against the defendant.

3. Paragraph 1 can be provisionally executed.

The same shall apply to the order.

1. Basic facts

A. The Plaintiff is an insurer who entered into a comprehensive automobile insurance contract with Nonparty 3 by setting the insurance period from November 9, 2002 to November 9, 2003 with respect to the vehicles owned by Nonparty 3 (vehicle number omitted) (hereinafter “Plaintiff vehicle”). The Plaintiff is an insurer who entered into a comprehensive automobile insurance contract by setting the items of security from November 9, 2002 to November 9, 2003, and made two installment payments related to the payment of the premium.

B. The Defendant and the non-party 4 Co., Ltd. (hereinafter “the non-party 4 Co., Ltd.”) between each of the non-party 1 and the non-party 4 are the insurers who concluded a comprehensive automobile insurance contract with respect to the two vehicles owned by the non-party 1, and the defendant, when the non-party 1, while entering into a separate automobile insurance contract with respect to the four vehicles owned by the non-party 1, compensate for the loss caused by the accident caused by the non-party 1, the insured, and the non-party 1, the insured, on behalf of the non-party 1

C. On October 25, 2003, Nonparty 3 caused an accident in which Nonparty 1’s front part of 1713 U.S., U.S., Sin-gun 1713, U.S., U.S., who was directly under the direction of the progress of the Plaintiff’s vehicle, was shocked by the front part of the Plaintiff’s vehicle (hereinafter “instant accident”). Accordingly, Nonparty 1 died on October 11, 2004 because the left part of the Plaintiff’s vehicle was under treatment by suffering from heavy injuries, such as a combination of abandonment abandonment, etc., and Nonparty 1 died on the left part of the Plaintiff’s front part, and Nonparty 2 was injured by Nonparty 2, U.S. who was under the influence of the Plaintiff’s operation.

D. Accordingly, the deceased non-party 1's bereaved family members and non-party 2 (hereinafter "the deceased non-party 1"), together with the deceased's bereaved family members and non-party 2, claimed for the payment of damages caused by the accident of this case against the plaintiff, the insurer of the plaintiff's vehicle. However, the plaintiff refused the payment of damages to the above deceased, etc. on the ground that the insurance contract on the remaining part except for the large part I under the comprehensive automobile insurance contract for the plaintiff's vehicle was already terminated due to the non-party 3's delinquency of insurance premiums twice against the plaintiff. The deceased, etc. claimed the defendant for the insurance money based on the special contract for accident insurance for non-life insurance, from January 2, 2004 to June 12, 2006, the defendant paid 85,698,820 won to the deceased's losses and related non-party 2, and 53,495,700 won to the non-party 2's losses and related non-party 2.

E. After January 30, 2004 and January 25, 2005, the Defendant recovered from the Plaintiff a total of KRW 58,163,090 ( KRW 46,425,090 + KRW 11,738,000 for the part of the non-life insurance damages paid to the Deceased, etc.). The Defendant claimed a reimbursement against the non-party 4 regarding the share of the insurance proceeds from the non-party 4 on November 30, 2005, and claimed a reimbursement for the share of the non-party 11,827,460 for the part of the deceased's loss from the non-party 4 on March 21, 2006, and recovered the share of the non-party 2's loss from the non-party 13,905,960 for each of them.

F. Meanwhile, on December 26, 2005, the non-party 4 filed a lawsuit claiming reimbursement equivalent to the above KRW 11,827,460 against the non-party 3 and the plaintiff who is the insurer of the accident of this case against the non-party 3 and the non-party 4, the perpetrator of the accident of this case, in response to the defendant's claim for reimbursement. The above court accepted the plaintiff's claim against the non-party 3, and dismissed the plaintiff's claim for reimbursement amounting to the above KRW 11,827,460 against the non-party 3. The plaintiff's claim against the non-party 4 was dismissed, and the non-party 4 appealed as the same court 206Na16091. The appellate court rejected the plaintiff's claim that the insurance contract was terminated on June 7, 2007, and declared that the non-party 4 was liable for the remaining part of the contract and accepted the plaintiff's claim against the non-party 4.

G. On January 22, 2010, after the Defendant became aware that Nonparty 4 won the lawsuit above, the Defendant filed a claim for the same reimbursement with the Plaintiff on January 22, 2010. On October 12 of the same year, the Plaintiff rejected the claim on the ground that the extinctive prescription has expired, the Plaintiff filed a claim for review of the claim for reimbursement of the same amount of reimbursement with the content of seeking the Defendant’s reimbursement of the damage insurance proceeds (the amount obtained by deducting each amount as seen earlier that was recovered from the Plaintiff and Nonparty 4 out of the total amount of reimbursement) which the Defendant ultimately assumed by paying to the Deceased, etc. pursuant to the “Mutual Agreement on the Deliberation of the Damage to Automobile Insurance” among the insurance companies, but the Plaintiff filed a claim for reimbursement of reimbursement with the Defendant on November 29, 2011, which was citing the Defendant’s claim for reimbursement of the same amount of reimbursement from the Plaintiff and Nonparty 4 to the Defendant on the same 30th day of the same month.

【Ground of recognition】 The fact that there has been no dispute, Gap evidence 1, 2, Eul evidence 1-1 through 3, 2, 3, and 4 respectively, and the purport of the whole pleadings and arguments

2. Determination as to the cause of action

A. The parties' assertion

The plaintiff asserted that the defendant's claim for the reimbursement of this case against the plaintiff was subrogated to the plaintiff of the deceased et al., and that the claim for reimbursement of this case was completed, and therefore, the defendant paid the amount of the reimbursement of this case once to the defendant according to the decision of the committee for deliberation of disputes over automobile insurance based on the "mutual Agreement on the Deliberation of Disputes over Automobile Insurance" although the plaintiff does not have an obligation to pay the compensation of this case to the defendant. In the end, the defendant asserted that the defendant has an obligation to return the amount of the reimbursement of this case to the plaintiff as unjust enrichment because there is no cause. The defendant's claim for the reimbursement of this case is a right to claim the return of unjust enrichment to the plaintiff by mistake in the Supreme Court's decision taking into account the automobile insurance policy in light of the nature of automobile insurance, etc., as the period of extinctive prescription is 10 years as in general claims, since it is not prescribed separately in each law. The starting point of the defendant's claim for reimbursement of this case should be viewed as the time when the appellate court ruling or the defendant paid the plaintiff's obligation instead of the plaintiff's claim.

B. Determination

1) Therefore, according to the above facts of recognition, the Plaintiff, as the insurer of the Plaintiff’s vehicle, is obligated to compensate the Deceased, etc., who is the victim for the damage caused by the instant accident, barring any special circumstances, and the Defendant compensates the Deceased, etc. for the entire damage caused by the instant accident, and the Defendant exempted Nonparty 3, who is the owner of the Plaintiff’s vehicle, from liability, is obligated to pay the indemnity amount equivalent to the insurance money that the Defendant subrogated to the Deceased, etc., the

2) However, according to Article 682 of the Commercial Act, if the damage was caused by a third party’s act, the insurer who paid the insured amount shall acquire the rights of the policyholder or the insured against the third party within the limits of the amount paid. As such, by subrogation of the insurer the rights of the third party such as the insured are transferred to the insurer without loss of identity, the period and starting point of the extinctive prescription period of the claim acquired by the insurer and the claim against the third party by the insured et al. (see Supreme Court Decision 9Da3143 delivered on June 11, 199). The extinctive prescription period of the claim for damages caused by the accident of this case by the deceased et al. shall be determined based on the claim of the deceased et al. against the third party by the deceased et al. for damages and al., within 3 years from the date on which the victim’s or his legal representative became aware of the damages and the damages caused by the accident of this case, the extinctive prescription period of the deceased’s bereaved family and the non-party 2, etc.

3) Therefore, the instant claim for indemnity is a general claim based on the Supreme Court Decision (Supreme Court Decision 2002Da61958 Decided December 26, 2003) without relation to the rights of the insured, etc. against a third party, and it is difficult to accept the Defendant’s assertion that the period of extinctive prescription is ten years. Furthermore, the above Supreme Court decision cited by the Defendant as the Defendant’s reasoning is a precedent that is irrelevant to the extinctive prescription because it is a precedent that is based on the interpretation of “non-life insurance” in a special contract for accident insurance for non-life insurance and related scope of liability. Thus, it is merely an independent opinion of the Defendant.

4) Furthermore, according to the interpretation of the automobile insurance clause, the term "non-life insurance" means a motor vehicle which has no personal liability insurance contract, or which has caused death or injury to the insured, and where it is not clearly revealed that the motor vehicle that caused a traffic accident is insured, and the insurance company that entered into an automobile insurance contract II with the insured motor vehicle as an insured motor vehicle refers to the victim, for example, the relationship between the accident and the accident occurred while driving without a license, and the non-life insurance company's exemption from liability for the pertinent traffic accident is a problem as to whether the liability for compensation exists, and it is not objectively revealed that the accident is non-life insurance company's exemption from liability for the pertinent accident, and thus, it is difficult to view that the victim can claim the payment of the insurance money according to the above special agreement as the non-life insurance company's non-life insurance policy for the purpose of prompt compensation for damages to the victim, and therefore, it is difficult to interpret the terms of the insurance contract as a matter of objective interpretation of the terms and conditions for non-party 2's rejection of the insurance contract.

5) For the same reason, it is reasonable to view that the starting point of the statute of limitations for the claim for indemnity of this case is the time when the accident of this case occurred or around that time, and there is no room to regard the time when the appellate court rendered a judgment or the final determination of the case between the non-party 4 and the plaintiff, or the time when the defendant paid the insurance money. In addition, the circumstance that such a lawsuit and trial were filed is merely the cause of de facto disability in exercising the claim for indemnity of this case, and it is difficult to view

6) On the other hand, the Plaintiff’s above assertion of extinctive prescription is a legal assertion of the party based on the legal basis and in light of the overall circumstances of the instant lawsuit, it is difficult to deem that the Plaintiff’s assertion of extinctive prescription significantly goes against the principle of good faith or constitutes an abuse of rights.

7) Therefore, even though the Defendant’s claim for indemnity of this case against the Plaintiff was terminated by the expiration of the extinctive prescription, the Defendant is obligated to pay to the Plaintiff damages for delay calculated at a rate of 5,298,010 per annum under the Civil Act from December 1, 2010 to March 15, 2011, which clearly is the date following the Plaintiff’s payment of the Plaintiff’s copy of the complaint of this case, and 20% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the following day to the date of full payment.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified and it is so decided as per Disposition.

Judges Park Jong-dae