자기차량손해보험에서 자기부담금과 보험자대위 범위에 관한 연구 - 대법원 2026. 1. 29. 선고 2022다287284 판결을 중심으로 -

This study examines the legal nature and allocation of the deductible in automobile own-damage insurance, with particular focus on the insurer’s right of subrogation under Article 682 of the Korean Commercial Act. In cases where a traffic accident occurs due to the concurrent negligence of the insured and a third party, disputes frequently arise as to whether the portion of loss corresponding to the insured’s deductible constitutes “loss not indemnified by the insurance proceeds” within the meaning of Article 682(1), and whether the insured may directly claim that amount from the tortfeasor or the tortfeasor’s liability insurer. Two competing views have been advanced. One characterizes the deductible as a contractual allocation of risk to be borne by the insured, thereby denying any independent claim against the third party with respect to that amount. The other regards the deductible as part of the actual loss caused by the accident that remains uncompensated by insurance and therefore recoverable from the responsible third party. Recent Supreme Court precedent has clarified this issue by recognizing the deductible as non-indemnified loss and affirming that, to that extent, the insured’s claim takes priority over the insurer’s right of subrogation. The prior divergence in opinion can be traced to differing understandings of the legal nature of automobile own-damage insurance, the functional role of the deductible, and the doctrinal foundation of subrogation in indemnity insurance. Automobile own-damage insurance is voluntary coverage structured to allow the policyholder to determine both the premium level and the amount of the deductible. The deductible represents a fixed sum borne by the insured in the event of loss and simultaneously operates as a limitation on the insurer’s indemnity obligation. It performs multiple functions, including risk allocation, premium adjustment, discouragement of minor claims, and reduction of transaction costs. Although the mitigation of moral hazard cannot be entirely excluded, it is difficult to regard that objective as the primary rationale of the deductible. Accordingly, the deductible has a dual character: it serves as a contractua l mechanism delimiting the insurer’s liability while also constituting that portion of the total loss not indemnified by insurance. The Supreme Court has further held that even where the insurer, under an advance settlement method, pays the insured the indemnity net of the deductible, the insured retains the right to seek damages from the third party in an amount corresponding to the third party’s proportion of fault with respect to the deductible. This reasoning reflects an extension of the insured-priority approach, under which subrogation is justified principally to prevent double recovery by the insured and claims relating to non-indemnified loss are accorded priority to the insured. Denying recovery against the third party for the deductible in its entirety would effectively relieve the tortfeasor of liability corresponding to his or her share of fault, thereby undermining both the structural logic of subrogation and the indemnity principle underlying property insurance. In conclusion, the deductible in automobile own-damage insurance is simultaneously a product of contractual risk allocation and a component of tort loss that remains uncompensated by insurance. It therefore qualifies as non-indemnified loss under Article 682. The insured may, within the limits of comparative negligence, directly claim from the third party an amount equivalent to the deductible corresponding to the third party’s share of responsibility, while the insurer may exercise subrogation only to the extent of the indemnity actually paid. This interpretation is consistent with the structure of Article 682 and prevailing judicial reasoning, and it reconciles the indemnity principle with equitable allocation of liability without unduly impairing the functional role of the deductible.