Furthermore, the Insurance Co., Ltd. (Attorney Kim Jong-tae, Counsel for defendant-appellant)

Defendant (Attorney Lee Jong-hee, Counsel for defendant-appellant)

November 7, 2018

Daejeon District Court Decision 2014Da21024 Decided August 23, 2017

1. The judgment of the first instance, including the Plaintiff’s claim extended by this court, shall be modified as follows.

A. It is confirmed that there is no obligation of the Plaintiff to pay insurance money to the Defendant for an accident listed in the attached Table 1 list.

B. As to KRW 21,968,230 and KRW 13,395,370 among the Plaintiff, the Defendant shall pay to the Plaintiff 5% per annum from November 25, 2015 to December 5, 2018, and 15% per annum from the following day to the date of full payment.

C. The plaintiff's remaining claims are dismissed.

2. One-half of the total costs of litigation shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

3. The above paragraph 1(b) may be provisionally executed.

Purport of claim

The defendant shall pay to the plaintiff 73,249,720 won with 59,249,670 won per annum from November 25, 2015 to August 23, 2017; 15% per annum from the next day to the day of full payment; 14,00,050 won per annum from November 2, 2018 to the day of full payment; and 5% per annum from the next day to the day of full payment; and 15% per annum from the next day to the day of full payment.

[Plaintiff claimed the return of KRW 59,881,050 in total of the medical expenses listed in [Attachment 2] Nos. 1 through 48 in the first instance court, but at the trial, the Plaintiff claimed the return of KRW 59,249,670 in the above 59,81,050 in the above 59,249,670 in the above 59,249,670 (the amount excluding the amount claimed in the first instance court, i.e., the amount of each of the medical expenses stated in [Attachment 2], and added the claim for the return of KRW 14,00,050 in total of the medical expenses listed in [Attachment 2] No. 49,800 in the payment details of each of the medical expenses listed in [Attachment 2] to the incidental appeal, but the purport of incidental appeal

Purport of appeal

The part against the defendant in the judgment of the first instance is revoked, and the plaintiff's claim corresponding to the revocation is dismissed.

1. Quotation of the first instance judgment

The reasoning of this judgment is the same as that of the judgment of the first instance, except for the dismissal as set forth in the following paragraph (2). Therefore, the reasoning of the judgment of the first instance (excluding the part concerning the conclusion of April 2) shall be cited in accordance with the main sentence of

2. Parts in height:

A. Each “50,000 won” in the first sentence of the first instance judgment shall be deemed as “464,746 won”.

B. On June 17, 2013 to October 29, 2015, the first instance court’s sentence No. 3, 5 (“Defendant”) read “from June 17, 2013 to October 29, 2015” as “from June 17, 2013 to December 7, 2017”; “59,81,050 won” as “73,81,100 won”; and “the Defendant” as “the medical institution of ○○○○ Hospital, etc., treated by the Defendant,” respectively.

C. On the 3rd page of the first instance judgment (based on recognition), “Nos. 27 and 32” is added to the column of the 7th page.

D. On the 3rd page of the first instance judgment, “A from October 30, 2015 to October 30, 2015,” the date following the date of the final payment of treatment costs, shall be deemed to be “A”.

E. Attached Forms 1 and 2 of the judgment of the court of first instance shall be changed to Attached Forms 1 and 2 attached to this judgment.

F. The contents of the judgment of the court of first instance No. 3 (No. 9 of the judgment of the court of first instance, No. 11 through No. 10 of the judgment of the court of first instance) are as follows.

1) As seen in the foregoing basic facts, the Plaintiff paid 73,881,100 won in total to a medical institution of ○○ Hospital, etc., the Defendant treated. Of these, from May 4, 2013 to May 31, 2013, the damages equivalent to KRW 502,320 of the medical expenses of ○○○ Hospital from May 4, 2013, and KRW 129,060 of the △△△△△△△△△△△△△△△△△△△△△△△△△△ KRW 73,249,720 (i.e., the instant accident), and there was a proximate causal link with the instant accident. Therefore, it is difficult to acknowledge a proximate causal link with the instant accident. Therefore, the Defendant, barring any special circumstance, was obligated to return the Plaintiff’s damages equivalent to the damages incurred to the Plaintiff, such as KRW 73,881,320,320, 129,060).

2) As to this, the defendant asserts that since the plaintiff paid the above medical expenses by agreement with the medical institutions in accordance with the relevant provisions of the Guarantee of Automobile Accident Compensation Act, this cannot be viewed as unjust enrichment without any legal ground.

An insurance company which has received a claim for medical fee covered by automobile accident insurance from a medical institution pursuant to Article 12 (2) of the Guarantee of Automobile Accident Compensation Act (hereinafter the legal title omitted) may entrust the Health Insurance Review and Assessment Service with the review of automobile accident insurance claimed by a medical institution (Article 12-2 (1)); an insurance company and a medical institution may raise an objection to the review results thereof (Article 12-2 (4)); and an insurance company and a medical institution may file an objection to the Medical Fee Insurance Dispute Resolution Committee within 30 days from the date of receipt of the notification of the result of the objection (Article 19 (1)). However, the insurance company and the medical institution are deemed to have reached an agreement on the review results of the Health Insurance Review and Assessment Service unless they file an examination with the Health Insurance Review and Assessment Service within the said period (Article 19 (3)). In such cases, the insurance company cannot claim the return of the amount paid to the medical institution on the grounds that the review results of the Health Insurance Review and Assessment Service's review results are unreasonable, barring special circumstances.

According to the overall purport of evidence Nos. 33-1, 2, and 3-3, the plaintiff raised an objection to the examination of the Medical Fee Review and Assessment Service (the date when the plaintiff was dismissed from the Review and Assessment Service on the objection by the Review and Assessment Service) as to the total amount of 51,281,490 won of each medical fee stated in the 33-1, 13, 14, 16, 19 through 26, 28 through 3, 35, 36, 39, 47 through 50, 53, 55 through 59, 62, and 64, but the plaintiff was dismissed from the review of the Medical Fee Review and Assessment Service (the date when the plaintiff was notified of the decision on the Medical Fee Review and Assessment Service). As such, the plaintiff did not request an examination of the Medical Fee Review and Assessment Service for each of the above decision within 30 days from the date the plaintiff was notified of such decision.

Therefore, since the amount equivalent to the above 51,281,490 won out of the medical expenses paid by the Plaintiff to medical institutions, such as ○○○ Hospital, as indicated in the attached Table 2 medical expenses payment statement, falls under the case where the Plaintiff and ○○ Hospital, etc. were paid according to the agreement on the payment of medical expenses between the Plaintiff and the Plaintiff and the ○○○ Hospital, etc., as such, even if the Defendant exempted the Defendant from the liability for the payment of medical expenses equivalent to the aggregate of 51,281,490 won, it cannot be deemed that the Defendant obtained benefits

3) Ultimately, the Defendant is obligated to pay the Plaintiff KRW 21,968,230 (=73,249,720 - KRW 51,281,490) and KRW 13,395,370 equivalent to the amount cited in the judgment of the first instance as well as KRW 13,395,370 equivalent to the amount cited in the judgment of the court of first instance, to the Plaintiff. From November 25, 2015, which is the delivery date of the application for modification of the claim and the cause of the claim, to KRW 8,572,860, which is an additional payment order in the trial, from November 25, 2015, which is the delivery date of the application for modification of the claim and the cause of the claim, to the Plaintiff by November 7, 2018, which is calculated annually from the date of the judgment of the first instance to December 5, 2018, each of which is prescribed by the Civil Act.

3. Conclusion

The plaintiff's claim, including the claim extended by this court, is justified within the scope of the above recognition, and the remaining claims shall be dismissed as it is without merit. The plaintiff's claim extended by this court and the defendant's appeal shall be accepted in part, and the judgment of the court of first instance shall be modified

[Attachment]

Judges Spanwon (Presiding Judge)