ELa District Damage Insurance Co., Ltd. (Law Firm Sejongyang, Attorneys Kim Mine-hun et al., Counsel for the plaintiff-appellant)

Samsung Fire and Marine Insurance Co., Ltd. (Attorney Cho Jong-tae, Counsel for defendant-appellant)

April 22, 2009

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendant shall pay to the plaintiff 32,50,000 won with 5% interest per annum from January 1, 2008 to the service date of a copy of the complaint of this case, and 20% interest per annum from the next day to the day of full payment.

1. Facts of recognition;

A. The Plaintiff is an insurer who has entered into a comprehensive insurance contract with the “○○ Agency” which is a substitute driver, and the Defendant is an insurer who has entered into an automobile insurance contract with Nonparty 3 on his/her own (vehicle number omitted) car (hereinafter “Defendant vehicle”).

B. On December 23, 2006, at the Syang Island located in the Gu Pyeong-dong in Ansan-si around 22:40, a traffic accident where a substitute driver 4 was driven by Nonparty 1, while driving the Defendant vehicle while the driver was driving the Defendant vehicle, and Nonparty 1 suffered injury, such as the mouth of two sub-lows.

C. By December 31, 2007, the Plaintiff paid KRW 89,238,640, including medical expenses incurred from the instant traffic accident, as insurance proceeds.

D. The Plaintiff’s comprehensive automobile insurance contract provides that the insured shall compensate for the damages caused by the insured’s legal liability for the death or injury of another person due to an accident of the insured automobile, or the removal or damage of another’s property; however, the scope is limited to class II, property compensation, and the scope of self-vehicle damages; and the Defendant’s above automobile insurance contract does not exclude the substitute driver from the insured as the assignee in the case of personal liability I (liability Insurance).

[Ground of recognition] Facts without dispute, Gap 1, 2, 6 through 9, the purport of the whole pleadings

2. Determination as to the cause of action

A. The plaintiff's assertion

According to the Plaintiff’s comprehensive insurance terms and conditions, the insured’s damages arising from an insured automobile accident during the insurance period from the time the insured was entrusted with an insured automobile for his substitute driving to the time of ordinary vicarious driving. However, in the case of personal compensation among the above damages, only the amount exceeding the amount shall be compensated if the insured can be paid as liability insurance (personal compensation) under the Guarantee of Automobile Accident Compensation Act. Since Nonparty 1, the injured party of the instant traffic accident, suffered from the injury such as the mouths of two and two, and suffered from a physical disability due to the strong formation of the right upper right upper right upper right upper right upper right upper right upper right upper right upper right upper right upper right upper right upper right upper right lower, the Plaintiff’s liability insurance money was paid to the Plaintiff as liability insurance money of Grade 12 (the maximum amount of liability insurance money of KRW 20,500,000) and the amount equivalent to the above liability insurance money of Grade 12 (the Defendant, including the above liability insurance money of KRW 89,238,640, etc.).

B. Determination

According to the above facts, 32,50,00 won out of 89,238,640 won of the insurance money paid by the Plaintiff is the damage to be compensated by the personal liability insurance first (liability insurance) under the Guarantee of Automobile Accident Compensation Act. In the case of the above automobile insurance contract of the Defendant, the representative driver is included in the scope of the consent beneficiary. The comprehensive insurance of the above automobile manager is limited to the personal liability insurance class II, the substitute damage, and the self-vehicle damage except the personal liability first (liability insurance). Thus, since the scope of the compensation is limited to the personal liability insurance class II, the representative driver is liable to pay the insurance money corresponding to the personal liability insurance class I (liability insurance) out of the damage caused by the instant traffic accident that occurred while the vehicle was operated by the Defendant as an agent by being commissioned by Nonparty 4 as his agent.

In this case, in order for the Plaintiff to claim the reimbursement of expenses equivalent to the above liability insurance amount or to claim the return of the amount equivalent to the above liability insurance amount as unjust enrichment, the payment of the Plaintiff’s above insurance amount as above becomes effective as repayment by a third party, and thereby, the Defendant’s liability for the payment of liability insurance amount to Nonparty 1 should be extinguished. Meanwhile, the third party’s obligation to pay the third party has the intent to pay other party’s debt. Such intent of the third party should be expressed through the designation of repayment indicating that the repayment is a third party’s repayment under Article 469 of the Civil Act.

However, there is no evidence to prove that the plaintiff expressed his/her intent to pay the defendant's liability insurance money to the non-party 1, either explicitly or implicitly, while paying the above insurance money, and there is no effect of paying the above insurance money as the third party's repayment, and the defendant still bears the liability insurance amount against the non-party 1.

3. Conclusion

Therefore, the plaintiff's claim of this case seeking the payment of the amount equivalent to the above insurance money based on office management or unjust enrichment on the premise that the defendant's obligation to pay the insurance money is extinguished is dismissed

Judges Park Sang-gil