자기부담금이 약정된 자기차량손해 보험자의 구상권 범위와 상법 제682조 제1항 단서의 해석에 관한 연구 - 자기부담금의 성질 분석과 함께 -

The recent lower instance regarding the scope of the claim amount for reimbursement for insurers who suffered damage to their own vehicles for which self-payment is contracted has drawn different conclusions from traditional reimbursement practices. The cases covered by the lower instance are all about the exercise of the insurer's right to claim for recovery in insurance for own vehicle damage, which is concluded in the form of full insurance. However, the lower instance cited the precedent of the Supreme Court with different nature. The precedent of the Supreme Court in question was a case in which the insured filed a claim for damages from a third party responsible for the fire in fire insurance concluded in the form of under insurance. Since it was concluded in the form of under insurance, the benefits were paid according to the principle of proportional payment, and as a result, the insured had damage not fully reimbursed. According to the result of using the precedent of the Supreme Court with such details, the lower instance interpreted the amount equivalent to self-payment that was not paid by the insurer due to the self-payment agreement as damage not fully reimbursed to the insured. In addition, it was interpreted that the insured could claim damages from a third party for the damages remaining after deducting the benefits already received from the total amount of damages, that is, self payment. As a result, it was judged that the exercise of this claim has priority over the insurer's subrogation rights. This judgment of the lower instance does not match the purpose of the self-payment system that the insured chose and concluded in order to obtain a discount on insurance premiums. In addition, the self-payment system, which aims mainly to prevent moral hazard and adverse selection, has been valueless or meaningless. There was also a problem that the scope of the reimbursement amount of the insurer who paid benefits is different depending on whether the insured's damages are covered first by the property compensation insurance that the other party bought or by the insurance for own vehicle damage. The insurance for own vehicle damage is full insurance. If the insurer has paid benefits excluding self-payment in the insurance for own vehicle damage with the self-payment contract, this means that the benefits have been paid in full. Therefore, it is not subject to the proviso of Article 682 (1) of the Commercial Act. Self-payment is not unindemnified damages in a both to blame car to car accident, and the insured cannot claim damages to the other party. It is submitted that the lower instance ruling did not correctly understand the self-payment system in insurance for own vehicle damage, and made an error of citing the precedent of the Supreme Court that is not suitable for factual relations.