Reference Non-Life Insurance Co., Ltd. (Law Firm Cheongju, Attorneys Yu Dong-dong et al., Counsel for the defendant-appellant)

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

April 25, 2018

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 5,372,392 won with 5% interest per annum from July 6, 2016 to the service date of a copy of the complaint of this case, and 15% interest per annum from the next day to the day of complete payment.

1. Basic facts

(a) Occurrence of a traffic accident and payment of insurance proceeds;

On May 15, 2013, the Plaintiff (hereinafter “Plaintiff”) entered into an automobile liability insurance contract with Nonparty 4 and (vehicle number omitted) with respect to the automobile (hereinafter “Plaintiff”) with Nonparty 4, from May 15, 2013 to May 15, 2016, under which the insurance period is from May 15, 2013 to Nonparty 2, who is Nonparty 4’s child (hereinafter “instant insurance contract”). The Defendant (former Fire Insurance Co., Ltd.) is the insurer who entered into the automobile comprehensive insurance contract with Nonparty 5 and (vehicle number 2 omitted) with respect to the automobile (hereinafter “Defendant vehicle”).

Around 12:50 on May 25, 2013, Nonparty 1 driven the Defendant’s vehicle and driven the road near the bus stops of △△△ Village in Gyeonggi-gun, Gyeonggi-do along the three-lanes in the ○○○○○-gun, a Japanese fire fighting letter, and then entered the two-lanes to change the two-lanes in the same direction, and the two-lanes conflict with the Plaintiff’s vehicle that entered the two-lanes to change the two-lanes (hereinafter “instant accident”). Accordingly, Nonparty 3, a South East East-dong of Nonparty 2, who was on board the Plaintiff’s vehicle, suffered injuries, such as the pressure pressure at the end of No. 12 and the end of No. 3, was treated as a fixed alcoholic beverage and alcohol between the two-lanes.

From the time of the instant accident to February 3, 2014, the Defendant paid KRW 11,045,842 to the medical institution in which Nonparty 3 received medical treatment, and paid KRW 77,00,000 to Nonparty 3’s mother’s mother, who was a minor at the time of the accident, to Nonparty 4’s mother’s legal representative at the time of the accident, and paid KRW 88,045,842 in total, by paying KRW 88,045,842.

(b) Lawsuit, etc. for indemnity;

On July 11, 2014, the Defendant filed a lawsuit claiming reimbursement of KRW 52,827,505, which is equivalent to 60% of the insurance proceeds paid by the Defendant, against the Plaintiff and Nonparty 2, on the ground that the negligence ratio of the Plaintiff in relation to the instant accident was 60%. On July 7, 2015, the court dismissed the Defendant’s lawsuit on the ground that the Plaintiff did not go through dispute settlement procedures prescribed in the Mutual Agreement on the Deliberation on the Settlement of Claims for Automobile Insurance (hereinafter “instant Agreement”), and determined that the negligence ratio of Nonparty 2 against the instant accident was 50%, and Nonparty 2 was sentenced to reimbursement to Nonparty 3’s damages equivalent to 88,045,842 won and damages for delay equivalent to 50% of the insurance proceeds paid by the Defendant, and both of the judgment and the judgment became final and conclusive, and both of which became final and conclusive.

On July 5, 2016, the Plaintiff agreed to pay the amount of KRW 5,372,392 (i.e., principal of the judgment + KRW 44,022,921 + delay damages + KRW 11,349,471) to the Defendant, upon the claim of Nonparty 2, who is in the status of the insured with consent to the instant insurance contract. At that time, the Plaintiff and the Defendant agreed that “The Plaintiff paid the amount of liability insurance to Nonparty 2 according to the instant insurance contract in the damages lawsuit brought by the Plaintiff in relation to the payment of the said amount of liability after delay, and that the Plaintiff promised not to dispute the fact that Nonparty 2 paid the full amount of the indemnity to the Defendant according to the judgment on the said case of indemnity.

C. Criteria for preferential compensation disposal of the instant agreement

On the other hand, 14 insurance companies, including the Plaintiff and the Defendant, concluded the instant agreement with the insurer or mutual-aider to resolve disputes arising between the insurer and the mutual-aider on the grounds that liability for automobile insurance or automobile mutual-aid as stipulated in the Guarantee of Automobile Accident Compensation Act exists, with a view to reasonable, economic and prompt resolution of the disputes arising between the insurer and the mutual-aider. Article 3 of the instant agreement provides that “All agreements companies, participating institutions, and agreement organizations shall be subject to this Agreement and the Code of Implementation, and shall have the obligation to comply therewith.” Article 45(1) of the Enforcement Code thereof (hereinafter “Enforcement Code of this case”) provides that “If it is possible to investigate whether the fault on the part of the victim can be applied to the other passengers, and if it is possible to apply it, such as a lineal ascendant or descendant, it shall not apply the fault on the part.”

[Ground of recognition] Unsatisfy, entry of Gap evidence 1 to 12 (including branch numbers in case of additional number), the purport of whole pleadings

2. Summary of the plaintiff's assertion

Considering the fact that Nonparty 3, the victim of the instant accident, was a high school student at the time of the accident and was living together with Nonparty 2, who was a minor at the time of the accident, Nonparty 2 and Nonparty 3, the driver of the Plaintiff vehicle, are in a relationship that can be seen as forming a whole social and social life, the Defendant should have determined the amount of agreement by applying Nonparty 2’s negligence to Nonparty 2 as a matter of course in the process of concluding an agreement on compensation with Nonparty 3 as a matter of course. Nevertheless, the Defendant, without applying Nonparty 2’s negligence to the victim’s negligence, paid the damages to Nonparty 3, without applying the victim’s negligence, filed a claim for reimbursement against Nonparty 2, the insured, and was actually paid by the Plaintiff.

Although the Plaintiff did not have an obligation to pay the amount of indemnity to the Defendant pursuant to the instant enforcement agreement, the occurrence of unfair consequences that the Plaintiff would pay the amount of indemnity to the Defendant by mediating Nonparty 2, who is in the position of the consenting insured, is due to the Defendant’s violation of Article 3 of the instant agreement and Article 45(1) of the instant enforcement agreement. Therefore, the Defendant is liable to pay the Plaintiff the amount of indemnity paid by the Plaintiff as compensation for nonperformance of obligation, and damages for delay.

3. Determination

A. Comprehensively taking account of the evidence Nos. 13-1 and 2-2, the fact-finding results and the purport of the entire pleadings with respect to the chief of the tax office in the Republic of Korea, Nonparty 3 was a high school student at the time of the instant accident as a student (date of birth omitted), Nonparty 3 was living together with Nonparty 2, a mother-child, and Nonparty 4. At the time of the instant accident, Nonparty 2 was receiving benefits of KRW 20,000,000 annually, while Nonparty 4 did not have any income.

Considering the status relationship between Nonparty 2 and Nonparty 3 as well as the source of income for livelihood, Nonparty 2 and Nonparty 3 may be deemed to be in a relationship that forms a whole part of their status or living relationship. As such, the Defendant was obligated to calculate the agreed amount by applying Nonparty 2’s negligence to the victim’s negligence in the process of making an agreement with Nonparty 3 as an insurance company for prior settlement pursuant to Article 45(1) of the Enforcement Rule of this case. Nevertheless, the Defendant did not apply to the victim’s negligence when calculating the agreed amount. This ought to be deemed to have violated Article 45(1) of the Enforcement Rule of this case.

B. However, in light of the fact that the Plaintiff is obligated to pay the amount of compensation for damage to Nonparty 3, the victim of the instant accident caused by Nonparty 2’s negligence, the consenting insured, as insurance money, and that the Plaintiff agreed not to dispute that “the Plaintiff would normally pay the amount of liability insurance to Nonparty 2 according to the insurance contract of this case,” while paying the amount of compensation to the Defendant, and that the Plaintiff’s payment of indemnity amounting to KRW 55,372,392 should be presumed to be premised on the Plaintiff’s obligation to pay the amount of liability insurance equivalent to the same amount to Nonparty 2. If the Defendant paid only the agreed amount calculated by applying the victim’s negligence to Nonparty 3 pursuant to Article 45(1) of the enforcement agreement of this case, the Plaintiff should be deemed to be liable to pay the amount of compensation for damage equivalent to the victim’s negligence to Nonparty 2 or Nonparty 3, the

Therefore, even if the Defendant was erroneous in failing to apply the victim’s fault pursuant to Article 45(1) of the enforcement agreement of this case, the result is merely that the Plaintiff paid the same amount as the insurance money to be paid to Nonparty 2 or Nonparty 3 as the amount of indemnity to the Defendant, and it cannot be deemed that any damage to the Plaintiff arises due to the above error.

C. Ultimately, there is no proof that the Plaintiff suffered damage due to the Defendant’s negligence, and the Plaintiff’s above assertion is without merit.

4. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

Judge Oralk