‘무보험자동차에 의한 상해’에서 보험자대위에 관한 연구 - 대법원 2014. 10. 15. 선고 2012다88716 판결 -

Abstract

The Supreme Court recently held that the insurer providing uninsured motorist coverage did not take over risk based on actual amount of damages, but calculated based on the payment standard. Therefore, in the case that the insurer who agreed to provide uninsured motorist coverage paid insurance to the insured, the amount that the insurer can subrogate a claim for damages to compensator of the insured is the same according to Article 729 of the Commercial Act of South Korea (“Commercial Act”). That is, the Court decided that the insurance is limited to the amount which is calculated justly based on the payment standard according to the general standard clause within limits of a claim for damages. According to the Commercial Act, subrogation is prohibited in personal insurance but the insurer can exert the subrogation right of the third party if there is a different agreement in accident insurance. This rule applies only to accident insurance and, accordingly, subrogation is prohibited in life insurance. The decision of the Court is proper because insurance is calculated based on the payment standard in the accident agreement of current automobile insurance and there is a different agreement of subrogation. However, the current uninsured motorist coverage policy, which allows the insurer to exert a subrogation right in case of death, has a problem as it is contradictory to the Commercial Act. Therefore, this thesis examined and compared the scope of the uninsured motorist agreement with the decision of the Supreme Court and suggested that subrogation in case of death should be excluded.