[1] The meaning of "insured with consent" as stipulated in the standard terms and conditions for comprehensive insurance of motor vehicles for business, and whether a person who uses a key machine under his/her management and responsibility by leasing a key machine from a registered insured and using it constitutes a person who uses or manages a key machine with the consent of the registered insured (affirmative)

[2] The case holding that the court below erred in the misapprehension of legal principles in holding that Byung's tenant is not Byung but Byung's tenant as a tenant of the above excavation machine, and Byung's company which concluded the comprehensive insurance contract with Eul for the above excavation machine is the consented insured as stipulated in the indemnity clause, and Byung's agent or company did not have a liability to pay the insurance money to Byung, in case where Gap requested Eul to remove garbage neglected in Gap's equipment operator Eul, Eul's agent or company Gap's agent for the above work, and notified Byung of the site and requested Byung to change work, and Byung called Eul with the ground for the above work. Byung called Eul for the above excavation machine, and Byung's agent or company did not have a liability to pay the insurance money, and Byung's agent was merely a part of Gap's agent or company's work as Gap's agent and participated in the site, and Byung's agent should be deemed as Gap as a tenant of the excavation machine

[1] Articles 105 and 618 of the Civil Act, Articles 659 and 726-2 of the Commercial Act / [2] Articles 105 and 618 of the Civil Act, Articles 659 and 726-2 of the Commercial Act

[1] Supreme Court Decision 97Da12884 delivered on August 29, 1997 (Gong1997Ha, 2861)

D non-life insurance Co., Ltd. (former trade name: Dongbu Fire Marine Insurance Co., Ltd.) (Law Firm Bain, Attorneys Ansan-ho et al., Counsel for the plaintiff-appellant)

Defendant-Counterclaim (Attorney Jeong-hun et al., Counsel for the defendant-Counterclaim plaintiff-appellant)

Jeonju District Court Decision 2014Na9741, 9758 Decided December 7, 2015

The part of the lower judgment against the Defendant (Counterclaim Plaintiff) regarding the main lawsuit and counterclaim is reversed, and that part of the case is remanded to the Jeonju District Court.

The grounds of appeal are examined.

1. The reasoning of the lower judgment and the record reveal the following facts.

A. On June 20, 2012, the Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”), an insurance company, concluded a comprehensive automobile insurance contract (hereinafter “instant insurance contract”) that covers Nonparty 1 and his/her ownership (vehicle number omitted) (hereinafter “instant excavation machine”).

B. Nonparty 2 (the age of 77 at the time of the instant accident) leased the instant emptyter (hereinafter referred to as “instant emptyter”) around the Jeonju-si ( Address omitted) owned by the principal to a commercial person. However, the instant emptyter was left alone due to the lack of contact with the deceased commercial person while keeping the solid collected by the deceased commercial person.

C. Accordingly, Nonparty 2 asked Nonparty 3, who is a boom driver, in the relationship of the death money, to leave the garbage boom, but the non-party 3 was unable to use the equipment he owns, and thus, sought to introduce the equipment business operator. Nonparty 3 requested Nonparty 1 to contact the non-party 1 and put the garbage boom, etc. stored in the instant emptyter.

D. The Defendant (Counterclaim Plaintiff, hereinafter “Defendant”) was the act of Nonparty 2, and upon Nonparty 2’s request, considered Nonparty 2’s day on behalf of the aged Nonparty 2 on behalf of Nonparty 2.

E. On March 17, 2013, the Defendant asked Nonparty 2 to “on March 18, 2013, with the instant excavation machines available at the morning and to change them into the instant vacant machines,” upon Nonparty 1’s request, the Defendant directed the site at the time of the work, and undergo the work at the time of leaving the garbage bags, etc. of the instant empty machines.”

F. At around 08:30 on March 18, 2013, Nonparty 1 started the work of cutting down the garbage vapor by gathering the Defendant, a dump truck article, and a seal box in the instant emptyter. At around 09:00, the Defendant: (a) cutting the tower into the wire line to set up the freezing train located in the air base; and (b) cutting off the line to cut off it again; and (c) Nonparty 1, in order to set up the center of the tower, took off the wire line on the said tower and caused Nonparty 1 to incur approximately 0.5 meters to the Defendant; (d) while the ropes was cut down, the Defendant felled at approximately 2.5 meters in height, and dumped the number of the vehicles (hereinafter “instant accident”).

G. After the instant accident occurred, the Defendant transferred the instant accident to the 119 first-aid hospital, and Nonparty 1 continued to work after the occurrence of the accident, and Nonparty 2’s contact with Nonparty 2 and ceased to work any longer.

H. Meanwhile, in the terms and conditions applicable to the instant insurance contract, the term “the Plaintiff shall not compensate in the event that a person who operates an insured automobile with permission from a named insured person, or his parent, spouse, or child dies or is injured” (hereinafter “instant exemption terms and conditions”).

2. Judgment on ground of appeal No. 1

A. The standard terms and conditions for comprehensive insurance of motor vehicles for business (amended by Act No. 28, Dec. 28, 2012) stipulate that the scope of the insured shall not be limited to the registered insured, and stipulates that “any person who uses or manages an insured motor vehicle with the consent of the registered insured,” and so-called "the person who is in charge of using or managing the insured motor vehicle with the consent of the registered insured,” and the so-called "the insured shall be liable for damages caused by an insured motor vehicle due to the insured's accident that occurred during the possession, use, or management of the insured motor vehicle." As such, the insured is a person who uses or manages the insured motor vehicle with the consent of the registered insured and who is in the position of legal liability for damages in the event of the insured's death or injury caused by an accident in the course of its use or management. Here, the term "use or management of the insured motor vehicle" means not only the case where the insured motor vehicle is actually used or managed, but also the case where it can be viewed as an insured motor vehicle under social norms (see Supreme Court Decision 297Da284, etc.

Therefore, in the case of using a stringer under the management and responsibility by leasing a stringer, etc. from the insured, the stringer should be regarded as a person who uses or manages the stringer with the consent of the insured.

B. The lower court determined that the Defendant was not liable to pay the Plaintiff compensation pursuant to Article 2(2) of the instant exemption clause on the ground that the Defendant, the insured of the instant insurance contract, was injured by Nonparty 1, along with the driver’s license, while leasing and working for the instant excavation season, and thus, constituted the consenting insured under the instant exemption clause.

C. However, the above determination by the court below is difficult to accept in light of the following circumstances acknowledged by the facts as above.

(1) The instant vacant lot is owned by Nonparty 2, and the benefits from restoring the value of the land and exercising the property right are reverted to Nonparty 2.

(2) Even when Nonparty 1 asked Nonparty 3, who is in a relationship with Nonparty 2, to perform the work, but Nonparty 3 again asked Nonparty 1 to re-request the fact that it is difficult for Nonparty 3 to do so. When the Defendant contact Nonparty 1 upon Nonparty 2’s request, it is reasonable to see that Nonparty 1 was already granted the lease of the instant excavation searcher upon Nonparty 2’s request by Nonparty 3.

(3) After the occurrence of the instant accident, Nonparty 1 continued to contact Nonparty 2 with Nonparty 2, and ceased to work, under Nonparty 2’s order.

(4) Since it is difficult for the Defendant to see Nonparty 2’s day on behalf of Nonparty 2, the Defendant appears to have reached the instant accident, even at the time of the instant accident, at the time of the instant accident, at the work site where Nonparty 2, the aged, was placed in the workplace where Nonparty 2, who is the head of the Gu.

(5) In light of these facts, in fact, the person who actually leased the excavation of this case is Nonparty 2, and the Defendant did not become lessee solely on the ground that the Defendant was guiding and guiding the work upon Nonparty 2’s request by Nonparty 2, who is the captain. Rather, in light of the relationship between marriage with Nonparty 2 and Nonparty 2, the Defendant should be deemed to have delivered work schedule to Nonparty 2’s agent or private person at the time of the instant work and participated at the site.

D. Examining these circumstances in light of the legal principles as seen earlier, there is sufficient room to regard Nonparty 2 as the consenting insured rather than the Defendant, not Nonparty 2. Nevertheless, the lower court erred by misapprehending the legal doctrine regarding the concept of the consenting insured, or by misapprehending the facts against the rules of evidence, thereby adversely affecting the conclusion of the judgment. The Defendant’s ground of appeal assigning this error is with merit.

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the part against the Defendant regarding the principal lawsuit and counterclaim in the judgment below is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim So-young (Presiding Justice)