자동차보험과 관련된 청구권대위에서 제3자의 범위에 대한 비판적 고찰

Abstract

Under the present automobile insurance practice in Korea, we sometimes face an unreasonable situations. It happens when the person who is given consent to use the iusured's car by the insured, as inscribed in an automobile insurance by policy, causes an automobile accident with the car, and doesn't have a driving license. And it also happens when the insured who is inscribed in an automobile insurance policy gives consent to use the iusured's car to the person and his/her employee is being hurt by the accident which the person or his/her another employee has caused during his/her work with this car. In such cases, this person comes under an exemption clause of "unlicensed driving"; "the one who is covered with the industrial accident compensation insurance as an employee of the insured" or "the one who is employed by the same one as the insured's employer and covered with the industrial accident compensation insurance". So, the insurer is exempted from liability to that person in the respect of industrial accident. However, the insurer has to pay to the victim for the damages as long as the insured gave a consent to the person without permitting his or her unlicensed driving explicitly nor implicitly or the insurer has to do it according to the Article 3 of the「Guarantee of Automobile Accident Compensation Act」. The problem rises as, the insurer cannot subrogate the insured's right to the person as a subrogee according to the subrogation in the Article 682 of the 「Commercial Act」. This is mainly caused by the interpretation of the Article 682 of the 「Commercial Act」by the Supreme Court. The Court comes to conclusion that the insured to whom the insurer is exempted from liability is not the "third party" but "the insured", in spite of the insured individual application theory in the clause of insurance . This situation discussed so far is very unreasonable. So this paper shall analyze current situation at issue and present the ways to improve. To carry out this, this thesis will firstly analyze several judicial judgements related to the application of the Article 682 of the 「Commercial Act」. Secondly, I will draw the issues related the subrogation of the insurer and derive some ideas by comparing with the regulations of several different countries. To analyze the judgements and the practice related the subrogation of the insurer critically, this paper reexamines various points as follows : the legal meaning and basis of the subrogation of the insurer stated in the「Commercial Act」, the legal principles of insurance, the insured individual application theory, the subrogation by a person who has performed obligation as the Article 481 of the 「Civil Act」 and any other views concerning this subject(the subrogation of the insurer which doesn't require need of willfulness․intention or negligence, non-life insurance contract for the third person, comparison with the subrogation of the insurer in the industrial accident compensation insurance practices). By making a comparative study of the issue related the subrogation right of the insurer, this paper shall inquire into the right to demand a reimbursement based on the subrogation of the insurer in Germany and in Japan, in order to obtain implications in regard to the interpretation of the "third party" in the Article 682 of the 「Commercial Act」. Finally, this paper shall suggest the reformation of the Article 682 of the 「Commercial Act」as an alternative solution. Since it is impossible for the insurer to use not only the right to demand a reimbursement based on the Article 682 of the 「Commercial Act」but also to request a reimbursement based on the Article 482 of the 「Civil Act」, according to the current insurance practice. And even if we endeavour to apply the insured individual application theory in clause of insurance through revising the clause of insurance, it is apprehended that it may violate the Article of 663 of the「Commercial Act」which is named 'The rule of prohibition against altering insurance clause more disadvantageously as compared with the clauses of the Commercial Act'. So, this is not the right solution. As a result, the conclusion is derived that the revision of the Article 682 of the 「Commercial Act」 to expand the scope of the "third party" is the wisest solution. If the Article 682 of the 「Commercial Act」is to be reformed, it is desirable to include such a clause stating 'The insured in relation to whom the Insurer is exempted from liability' is regulated as the "third party" of the Article 682 of the「Commercial Act」by adding the Article 682 II to the current Act.