Case non-life insurance Co., Ltd. (Law Firm Cheongju, Attorneys Don-dong, Counsel for defendant-appellant)

D non-life insurance Co., Ltd. (Gangnam General Law Firm, Attorney misunderstanding-hun, Counsel for defendant-appellant)

Seoul Central District Court Decision 2016Da5237427 Decided May 30, 2018

December 7, 2018

1. The part of the judgment of the court of first instance against the plaintiff, which orders payment below, shall be revoked.

The defendant shall pay to the plaintiff 5,372,392 won with 5% interest per annum from July 6, 2016 to January 11, 2019, and 15% interest per annum from the next day to the day of full payment.

2. The plaintiff's remaining appeal is dismissed.

3. All costs of the lawsuit shall be borne by the defendant.

4. The part concerning the payment of money under paragraph (1) may be provisionally executed.

The judgment of the first instance is revoked. The defendant shall pay to the plaintiff 5,372,392 won with 5% interest per annum from July 6, 2016 to the service date of a duplicate of the complaint of this case, and 15% interest per annum from the next day to the day of complete payment.

1. Basic facts

The reasoning for this part of this Court is as follows: (a) except where the second 10th " May 15, 2016" among the corresponding parts of the reasoning of the judgment of the court of first instance is deemed to be " May 15, 2014," the corresponding part of the reasoning of the judgment of the court of first instance is the same as the corresponding part of the reasoning of the judgment of the court of first instance; and (b) thus,

2. Summary of the parties' arguments

A. The plaintiff

1) Considering the fact that Nonparty 3, the victim of the instant accident, was a senior student at the time of the accident and was living together with Nonparty 2, who was a minor and was responsible for his family’s livelihood, Nonparty 2, the driver of the Plaintiff vehicle, and Nonparty 3, the victim, are in a relationship that can be viewed as forming a whole in relation to the status and social life, so the Defendant should have calculated the amount of agreement by naturally applying Nonparty 2’s negligence to the victim’s negligence in the course of concluding the agreement with Nonparty 3

2) Nevertheless, the Defendant paid damages to Nonparty 3 without applying Nonparty 2’s negligence on the part of the injured party, and filed a claim for indemnity against Nonparty 2, the insured person who agreed to the insurance contract of this case, and received the indemnity amount, which became final and conclusive by the judgment of the Plaintiff in fact.

3) In accordance with the instant enforcement agreement, the Plaintiff did not have a duty to pay indemnity to the Defendant. The Plaintiff did not conclude a special agreement for indemnity insurance and did not conclude a non-life-free special agreement for the payment of the insurance proceeds. Therefore, if the Defendant did not obtain the above judgment against Nonparty 2, it would not have any reason to pay the insurance proceeds pursuant to the part of the non-party 2’s negligence. However, the occurrence of unjust result that the Plaintiff would pay indemnity to the Defendant by mediating the non-party 2 in the status of the receiving insured was in violation of Article 3 of the instant agreement and Article 45(1) of the enforcement agreement, and thus, the Defendant breached Article 3 of the instant agreement and Article 45(1) of the enforcement agreement of the instant case. Therefore, the Defendant is liable to pay the Plaintiff the indemnity amount paid to

B. Defendant

1) The instant agreement is merely concluded to resolve disputes between insurance companies in a reasonable and economic way, and it is not a contract concluded for the purpose of fulfilling obligations. Thus, even if the Defendant violated the instant agreement, the Plaintiff cannot file a claim for damages against the Defendant for nonperformance, apart from the imposition of penalties.

2) In addition, Article 45(1) of the enforcement decree of the instant case merely provides for the waiver of the right to indemnity against the latter disposal company, and it does not prohibit the exercise of the right to indemnity against the party to the tort, and the Defendant’s claim for indemnity against Nonparty 2, a tort, cannot be deemed to violate the enforcement decree of the instant case. Moreover, in light of the circumstances such as the victim’s age, relationship, and residence as well as the fact that it is necessary to confirm all facts in order to apply negligence on the part of the victim, the Defendant cannot be deemed to have been negligent in not applying fault on the part of the victim

3. Determination

A. Legal nature of the instant agreement and the enforcement agreement

As seen earlier, the instant agreement was concluded with a view to reasonable, economic and prompt settlement of disputes arising between an insurer or a mutual-aid business entity regarding the existence and scope of liability on the ground that 14 parties to the agreement including the Defendant competes with the liability for automobile insurance or automobile mutual-aid as stipulated by the Guarantee of Automobile Accident Compensation Act (Article 1 of the instant agreement), and accordingly, all the parties to the agreement are subject to the instant agreement and the enforcement regulations, and are obliged to comply therewith (Article 3 Section 1 of the instant agreement). In full view of the facts that the instant agreement (Article 3 of the instant agreement), it is reasonable to deem that the instant agreement (the instant implementation agreement aimed at providing for the detailed enforcement guidelines and detailed procedures for the consultation with the matters delegated by the instant agreement) was a contract with the legal capacity of binding the agreement, which was concluded between the parties to the agreement, and Articles 30 and 31 of the instant agreement provides that a sanction may be imposed within the limit of 10 million won on the agreed company upon resolution of the Operating Committee.

B. Whether the Defendant violated the enforcement rules of the instant case

1) Relevant legal principles

The purport of Articles 763 and 396 of the Civil Act to consider the liability for damages caused by the tort and the negligence of the victim in determining the amount thereof is to fairly share the damage caused by the tort between the perpetrator and the victim. Thus, the negligence of the victim should be taken into account not only the negligence of the victim himself but also the negligence of the person who is in a relationship that can be viewed as forming a whole in the social life and status of the victim (see Supreme Court Decision 92Da54753 delivered on May 25, 1993).

2) Determination

A) In light of the above legal principles, the following facts and circumstances are comprehensively taken into account: (a) Nonparty 3 was living together with Nonparty 2 who was 21 years of age in Gyeonggicheon-gun ( Address omitted); (b) Nonparty 3 was working at the time of the accident in this case; and (c) Nonparty 2 was working at the time of the accident in this case’s income amount of KRW 20 million per year; and (d) Nonparty 2 supported Nonparty 4 and Nonparty 3, who was working at the time of the accident in this case’s income amount of KRW 20 million; and (e) Nonparty 2 was working at the time of the accident in this case’s income amount of KRW 30,000 per year; and (e) Nonparty 2 supported Nonparty 4 and Nonparty 3, who was working at the time of the accident in this case’s status and social life; and (e) Nonparty 2 should be considered as having a relationship between Nonparty 3 and Nonparty 2’s negligence.

B) Therefore, when the Defendant, as an insurance company for prior processing under the provisions of the instant implementation agreement, was obligated to calculate the agreed amount by taking into account the fault of Nonparty 2’s victim’s fault into account when calculating the agreed amount, the Defendant did not consider the fault on the part of the victim in the calculation of the agreed amount. ② In addition, even though the Defendant did not directly exercise the right to indemnity against the Plaintiff, the Defendant brought the same result as claiming the amount of indemnity against Nonparty 2, who is not a party to the instant agreement and the implementation agreement, via the intermediate payment against the Plaintiff. ③ Furthermore, according to Article 45(2) and (3) of the instant implementation agreement, if there is a dispute as to whether the application of negligence on the part of the victim was possible, the Defendant notified the Plaintiff and heard his opinion, and even if the Plaintiff could not raise his opinion within 10 days from the date on which the Plaintiff did not raise any objection or notified, it is reasonable to deem that the Defendant violated the instant implementation agreement and the instant implementation agreement.

C. Determination as to the defendant's negligence

According to the above evidence, the defendant appears to have been able to grasp the relationship, age, residence, etc. between the non-party 2 and the non-party 3 in the name of the non-party 3, who is the driver of the plaintiff's vehicle, and the non-party 3, who is the same as the "sex," and the defendant could have been able to grasp the relationship, age, residence, etc. of the non-party 2 even through a simple investigation. As alleged by the defendant, where the non-party 3 judged that the non-party 2's negligence cannot be viewed as the negligence of the non-party 3 merely because he was admitted to the non-party 2, who is the non-party 3, as alleged by the defendant, on the ground that the non-party 3 was unable to be viewed as the negligence of the non-party 3 on the ground that he was notified of the plaintiff and heard his opinion in accordance

D. Determination as to the occurrence of the Plaintiff’s loss

In full view of the purport of the argument in Gap evidence No. 14, the plaintiff can recognize the fact that the plaintiff did not enter into a special agreement for the payment of self-paid or non-insurance premium, so the plaintiff is not liable to pay damages due to negligence on the part of the non-party 2 himself/herself and the non-party 3 who could be identical to the plaintiff. Thus, if the defendant paid only the insurance money calculated by applying negligence on the part of the victim to the non-party 3, the plaintiff could not pay the damages for the plaintiff's negligence.

E. Sub-decision

Therefore, the Defendant’s negligence violated the instant agreement and the enforcement rules, and accordingly, the Plaintiff is liable to pay the Plaintiff damages of KRW 55,372,392, as acknowledged earlier, as the Plaintiff did not pay the insurance proceeds if the Defendant had paid the insurance proceeds by applying the negligence on the part of the victim at the time of the agreement with Nonparty 3. Therefore, the Defendant is liable to pay the Plaintiff damages of KRW 55,372,392, and damages for delay calculated at each rate of KRW 15% per annum as stipulated in the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from July 6, 2016, which was sought by the Plaintiff after the date of the occurrence of damages, to the Plaintiff.

4. Conclusion

Therefore, the plaintiff's claim of this case is justified within the scope of the above recognition, and the remaining claims are dismissed as without merit. Since the part against the plaintiff corresponding to the above recognition amount is unfair from among the judgment of the court of first instance which has partially different conclusions, it is revoked and the defendant is ordered to pay the above amount, and the remaining appeal of the plaintiff is dismissed as it is without merit. It is so decided as per Disposition.

Judges Lee Dong-hee (Presiding Judge)

1) In addition, Article 3(1) of the Effective Code of this case provides that “All agreements shall resolve the disputes of indemnity between them in good faith on the basis of good faith in accordance with the agreements and regulations.”