[1] In the case where the victim who was involved in an accident caused by a motor vehicle Class II as a substitute for the motor vehicle insurance contract fails to receive compensation in accordance with the terms and conditions of exemption for driving without a license, the scope of application of the terms and conditions of exemption for driving without a license and the standard for determining the existence of implied approval for driving without a license

[2] Whether a registered insured who has subscribed to a limited driving agreement of 21 years of age under an automobile insurance contract is obligated to verify the driver's age when he/she permits another person to drive the insured motor vehicle (affirmative)

[3] In a case where the amount of the insurance money calculated on the basis of the actual income amount of the business income earner when calculating the insurance money in the case of an injury clause in the general terms of an individual automobile insurance contract, which is stipulated to deduct the amount that can be paid by the personal automobile accident compensation I or the liability deduction under the Guarantee of Automobile Accident Compensation Act, the method of calculating the actual income amount of the business income earner

[4] The case holding that the calculation of the insurance money based on the injury clause of the non-life insurance among the insurance policy for a household car package shall not be actual damage amount of the insured, but be limited only to the amount based on the payment criteria of the insurance money stipulated in the ordinary terms and conditions

[1] In an insurance contract where the victim who was involved in an accident caused by an automobile covered by automobile accident No. Ⅱ, such as a non-licensed driving exemption clause under the automobile insurance contract or under the 21-year limited driving agreement, fails to receive compensation as stipulated in the 21-year limited driving agreement, whether the insurer cannot receive compensation as stipulated in the 2-year limited driving exemption clause for compensating for the damage falls under the 21-year limited driving exemption clause and the 2-year limited driving exemption clause applies only when the 2-yearless driving is done under the condition that the 3-yearless driving is controlled or managed by the policyholder or the insured. Thus, the determination of whether the 3-yearless driving exemption clause applies only when the 3-yearless driving is made under the condition that the 3-yearless driving is controlled or managed by the policyholder or the insured, the relation between the policyholder or the non-licensed driver, the operation and management situation of the 3-yearless driving, the situation and purpose of the 4-yearless driving, and the attitude of the insured or the insured.

[2] In a motor vehicle insurance contract, a registered insured who has subscribed to a limited driving agreement of age 21 is obligated to verify the driver's age unless there are special circumstances to believe that the driver's age falls under the driver's age, if he/she allows another person to drive the insured motor vehicle to the extent that he/she is given preferential treatment to pay the insurance premiums less than his/her own

[3] Where an insurance contract is concluded between the parties on the basis of an insurance contract, the insurance contract shall be included in the contents of the contract, and it shall be binding on the parties to the contract, barring any special circumstances. Therefore, in the case of injury clause by an insurance company caused by an accident caused by an accident under an accident under an insurance contract, if the insurance contract provides that the amount calculated on the basis of actual income amount excluding taxes and public charges as well as the wage income earner shall be deducted from the amount calculated on the basis of actual income amount excluding taxes and public charges under the Guarantee of Automobile Accident Compensation Act, the deduction of the income tax and the resident tax to deduct the income tax to calculate the actual income amount of the business income earner in calculating the amount of compensation for damages caused by a tort, unlike the deduction of the income tax, is justifiable, and on the other hand, the amount that can be paid by the large liability deduction or liability deduction under the Automobile Accident Compensation Guarantee Act, as well as the amount actually paid, shall be deducted in full in accordance with the provisions.

[4] The case holding that the insurance money paid by an insurance company shall be the amount calculated by adding the necessary cost to the insurance money payment standard and deducting the prescribed amount from the insurance money payment standard under the General Terms and Conditions [Attachment 1], and the insurance money to be paid by an insurance company shall be the amount calculated by calculating the insurance money standard in the case of a personal automobile package insurance contract: Provided, That in case where a lawsuit is filed, the insurance money to be paid by the insured is calculated based on the insurance money payment standard under the Korean court's final judgment (including damages for delay) and the insurance payment standard is set by dividing the insurance money into liability insurance, personal compensation, physical compensation, etc. under the Insurance Terms and Conditions [Attachment 1], and the insurance money payment standard is limited only by the insurance money payment standard under the Insurance Terms and Conditions [Attachment 1]

[1] Articles 659(1), 726-2, and 727 of the Commercial Act / [2] Articles 659(1) and 726-2 of the Commercial Act / [3] Article 105 of the Civil Act, Articles 638 and 638-3 of the Commercial Act / [4] Article 105 of the Civil Act, Articles 638 and 638-3 of the Commercial Act

[1] Supreme Court Decision 93Da20313 delivered on May 10, 1994 (Gong1994Sang, 1632), Supreme Court Decision 98Da1072 delivered on July 10, 1998 (Gong1998Ha, 2075), Supreme Court Decision 2002Da27620 delivered on September 24, 2002 (Gong2002Ha, 2528) / [3] Supreme Court Decision 98Da31868 delivered on July 23, 199 (Gong199, 1724) / [4] Supreme Court Decision 96Da19307 delivered on October 11, 196 (Gong196Ha, 3314 delivered on September 25, 2012)

Jung-gu (Attorney Cho Young-gu et al., Counsel for the defendant-appellant)

Korea Fire and Marine Insurance Co., Ltd. (Law Firm Dongdong, Attorneys Choi Han-woo et al., Counsel for the plaintiff-appellant)

Busan High Court Decision 2001Na14702 delivered on May 1, 2002

Of the part against the defendant as to damages for delay of the judgment of the court below, the part ordering payment in excess of five percent per annum from September 26, 1997 to May 1, 2002, and twenty percent per annum from the next day to the day of full payment, shall be reversed, and the judgment of the court of first instance shall be revoked, and the corresponding claim shall be dismissed. The plaintiff's appeal and the remaining appeal by the defendant shall be dismissed. Of the total costs, the part due to participation shall be borne by the same fire and marine insurance company, and one of the remainder shall be borne by the defendant, and two of the remainder shall be borne by the plaintiff.

1. Summary of the judgment below

Based on its adopted evidence, the court below concluded a comprehensive insurance contract for an automobile with the non-party 1, the non-party 2, from July 7, 1997 to the non-party 1, as to the non-party 3 automobile owned by the plaintiff 1, as to the non-party 4703 automobile owned by the plaintiff, with the insurance period from July 7, 1997 to July 7, 1998, including "the non-party 2, the non-party 1, the non-party 2, the non-party 1, the non-party 2, the non-party 3, the non-party 9, the non-party 1, the non-party 1, the non-party 2, the non-party 3, the non-party 1, the non-party 4, the non-party 2, the non-party 3, the non-party 1, the non-party 4, the non-party 1, the non-party 2, the accident insurance contract, and the non-party 2, the non-party 3, the accident insurance contract.

The judgment below rejected the defendant's assertion that the accident in this case is not an accident caused by an accident caused by an accident without a license or an accident caused by an accident without a license, because the non-party 1 was a driver's license and the non-party 1 was able to drive the vehicle under the age of 24, and the non-party 1 did not explicitly or implicitly approve the non-party 1's non-license and the actual age while knowing the fact and actual age of the driver, and therefore, the insurer is liable to compensate the plaintiff pursuant to the non-party 2, and therefore, the accident in this case does not constitute an accident caused by an accident without a license or an accident caused by an accident without a license. The court below did not accept the defendant's assertion that the non-party 1 did not have a duty of care to pay the insurance money calculated by deducting the amount of the insurance money calculated by the defendant's insurance money from the terms and conditions of the non-party 1 at the time when the non-party 1 was discharged from the income tax or the non-party 21.

2. Judgment on the defendant's grounds of appeal

A. As stated in the instant accident security agreement, if the victim who was involved in an accident caused by a motor vehicle covered by the motor vehicle accident No. 2, such as the automobile insurance contract, the clause of exemption from driving or the clause of exemption from driving limited to age 21, fails to receive compensation as stipulated in the personal damage No. 21, the insurer cannot receive compensation as stipulated in the personal damage No. 2, because the clause of exemption from driving falls under the clause of exemption from driving without any license to compensate for the damage, it applies only to the case where the non-licenseless driving is performed under the condition that the policyholder or the insured is controlled or managed by the policyholder or the insured, the relationship between the policyholder or the non-licensed driver of the automobile insurance and the insured, the situation and purpose of operation of the non-licenseless driving, the attitude of the insured or the insured with respect to the non-driving driver, etc., shall be determined in consideration of the circumstances such as the intention of the policyholder or the insured to approve the non-licenseless driving (see Supreme Court Decision 2002Da26674, Feb. 27, 20002).

B. However, according to the evidence of the record, the rent rate of car owner, who is the owner of the vehicle from January 1, 1996, was living a part-time at the daily house from around 196. However, Nonparty 1 was aware of the fact that Nonparty 1 was working as a gold-time member at the bar in the daily house, and Nonparty 1 was frequently lent the vehicle from the neighboring store operator, and Nonparty 1 was present at the rent rate of the accident at several times. Nonparty 1 was able to use the instant vehicle twice before the accident, and Nonparty 1 was aware of the fact that Nonparty 1 was not the owner of the vehicle from around 1, 1996, and was the owner of the vehicle from around 4, 196, and was the owner of the vehicle from around 1, 200 to 3,000 on the day of the accident, and Nonparty 1 was not the owner of the vehicle from around 1, 200 to 3,000 on the day of the accident.

The fact-finding of the court below with the same purport is justified and there is no violation of the rules of evidence, such as failing to exhaust all necessary deliberations for the recognition of right and wrong.

C. In light of the above facts, in light of the following: (a) the relationship between Nonparty 1, the policyholder of the automobile insurance contract and Nonparty 1, the insured, the driver, and Nonparty 1, the driver; (b) the situation and purpose of the operation of the instant free driving; and (c) the attitude where the free driving of the instant free driving is conducted with respect to the driving of the ordinary driver without the license, etc., it cannot be acknowledged that Nonparty 1’s intention to approve the free driving of the instant case implicitly and implicitly; and (d) the non-party 1’s non-exclusive driving without the license does not constitute the exemption clause.

However, in the motor vehicle insurance contract, the registered insured who has subscribed to the limited driving agreement of 21 years old is obliged to verify the driver's age unless there are special circumstances to believe that the driver's age constitutes the available age unless he/she is the driver's age.

However, since a person who works as an employee of a entertainment bar has concerns over being unable to work in the entertainment bar if he/she is found to be a minor, and there is a case where he/she has reached his/her age more than the actual age, the 21-year-limited driving special agreement refers to the 24 years old from the person around the 21-year-limited driving agreement, as above, although he/she has been negligent in verifying whether he/she falls under the 24 years old age when he/she permits the driver of an insured motor vehicle to drive it, the non-party 1's driving is in violation of the limited driving special agreement and thus, it constitutes a case where he/she fails to receive compensation for personal injury as stipulated in Class II

D. Ultimately, the court below erred by misapprehending the legal principles on exemption from non-exclusive license, but the conclusion that the non-party 1's driving falls under the case where the non-party 1's compensation for personal injury is not paid damages as stipulated in Class II does not affect the conclusion of the judgment.

We cannot accept the Defendant’s argument in the grounds of appeal.

3. Judgment on the Plaintiff’s ground of appeal

A. As to the calculation of actual income amount of business income earner

In the event that an insurance contract has been concluded between the parties on the basis of an insurance contract, the insurance contract shall be included in the contents of the contract and shall be binding on the parties to the contract, barring any special circumstances. Thus, in the case of injury clause by an insurance company for non-life-free motor vehicle among the general terms and conditions of the insurance contract, if the amount of insurance money which the insurance company is liable for payment due to an accident caused by a non-life-free motor vehicle is stipulated to deduct the amount of income calculated on the basis of actual income, excluding taxes and public charges, as well as the benefits income earner, from the amount of income calculated on the basis of the actual income amount excluding taxes and public charges, the amount of personal compensation I or the liability deduction under the Guarantee of Automobile Accident Compensation Act, unlike the deduction of income tax, etc. on the basis of general tort, it is justifiable to deduct the income tax and the resident tax to deduct the income tax to calculate the actual income amount of the business income in calculating the amount of the insurance money (see Supreme Court Decision 98Da31868, Jul. 23, 199).

As seen earlier, the court below ordered the payment of insurance money after deducting the real income tax and the resident tax to be paid by the intervenor to the plaintiff from the amount of income calculated according to the terms and conditions as stated in the contract, and then deducting the total amount of insurance money to be paid by the intervenor to the plaintiff according to the large-person compensation I. The decision of the court below is justified in accordance with the above legal principles, and it is not erroneous in the misapprehension of legal principles in determining the amount of income or the amount of deduction in the "special agreement on indemnity for non-life insurance" as asserted by the plaintiff. This part of the

B. As to the interpretation of Article 3 (1) 2 of the Enforcement Decree of the Guarantee of Automobile Accident Compensation Act

The maximum amount of compensation under the injury clause on a non-life-free motor vehicle among the special terms and conditions of the non-life-free motor vehicle policy shall be limited to the amount of personal liability insurance, but if the amount of personal liability insurance policy is nonexistent, it shall be limited to 100 million won per person of the insured, and the insurance amount paid by an insurance company shall be the amount calculated by adding the necessary expenses to the insurance amount under the general terms and conditions [Attachment I] and deducting the prescribed amount from the insurance amount under the personal liability insurance payment standard. On the other hand, in the case of personal liability insurance, the insurance amount to be paid shall be calculated according to the payment standard of the insurance amount under the general terms and conditions. In the case of a lawsuit, the insurance amount to be paid shall be calculated based on the amount to be paid by the insured by the final judgment of the court of the Republic of Korea (including damages), and the payment standard of insurance amount shall be limited to the amount to be paid by the insured by the non-life-free motor vehicle by dividing it into liability insurance, personal compensation, and personal compensation, etc. under the insurance clause.

In addition, in the case of the provision on personal injury security by the non-insurance of the common terms of the automobile accident compensation insurance, the insurance money paid by the company shall be the sum of the amount calculated by the company's payment of insurance money and the amount calculated by comparative negligence, etc. and the expenses stipulated in the Clause 41.(Expenses) and the amount calculated by deducting each of the following subparagraphs from the aggregate amount of the insurance money paid by the company.

In light of the above legal principles, it is reasonable that the court below deducted the full amount of KRW 15 million which can be paid in personal compensation I in the case of injury from the provisions of the insurance clauses and the evidence recorded in the records. There is no illegality in the interpretation of Article 3 (1) 2 of the Enforcement Decree of the Guarantee of Automobile Accident Compensation Act.

The Plaintiff’s ground of appeal is rejected.

4. Ex officio determination on damages for delay

However, we examine ex officio the portion of "interest rate prescribed by Presidential Decree" in the main sentence of Article 3 (1) of the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings before the Amendment (amended by Act No. 6868 of May 10, 2003) was unconstitutional by the Constitutional Court on April 24, 2003. Accordingly, the amended provisions of the Act and the main sentence of Article 3 (1) of the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings (amended by Presidential Decree No. 17981 of May 29, 2003) provide that the statutory interest rate shall be 20% per annum for cases pending at the court at the time of the amendment, which are pending at the time of the enforcement of the Act, and there is no evidence to view that there was an agreement with the defendant's plaintiff to pay damages for delay at the rate of 20% per annum from 200 to 30% per annum 50% per annum.

5. Conclusion

Therefore, from September 26, 1997 to May 1, 2002, the part against the defendant as to damages for delay exceeds 5% per annum of 48,712,159 won from September 26, 1997 to May 1, 2002, and damages for delay by 20% per annum of 10% from the next day to the day of full payment. Since the part is sufficient to be directly judged by this court, the decision of the court below corresponding to the reversed part shall be revoked and dismissed, and the plaintiff's appeal shall be dismissed and the remaining appeal by the plaintiff shall be dismissed. The part related to the plaintiff's appeal and the defendant's remaining appeal shall be dismissed, and 1 of the part shall be borne by the Dong Fire Marine Insurance Co., Ltd. and 3 of the remainder shall be borne by the defendant, and 2 of the remainder shall be borne by the plaintiff, as so decided as per Disposition by the assent of all Justices

Justices Lee Hong-hoon (Presiding Justice)