relationship established through the insured between the plaintiffs and the victims despite an insurance-based relationship between the insurers and the insured.
However, the Supreme Court ruled that, even though the victims’ right to claim compensation for damages directly to the insurers arose from an illegal act of the insured, as pointed out by the Seoul High Court, the insurance contract was executed between the insurers and the insured to prepare for such case. The appearance of the victim in an accident was expected from the beginning, though it was not possible to determine the victim in advance at the time of signing an insurance policy due to the nature of the insurance. Thus, the liability of the insurers to compensate the victims for the damage to their cars was based on the insurance policy. On these grounds, the Court determined that it was possible to recognize a trading relationship between the plaintiffs and the victims, which is established through the insured. The Court also ruled that there had existed a trading relationship because the obligor could easily engage in unfair trade practices in the process of performing the liability to compensate for damage arising from the illegal act. In the same position, the KFTC ruled that it was not reasonable to define a trading relationship simply as an activity of exchanging goods or services based on the mutual intention of the parties concerned since an advantageous position and abuse of such position in transaction could occur even in a legal relationship for a direct claim for insurance payment.
2) Relationship between insurance companies and victims based on direct liability insurance claim
In principle, a third person does not have any direct rights and responsibilities against the insurer because a contractual relationship is established between the insurer and the insured under a liability insurance policy. As the purpose of liability insurance changed from protection of the insured to protection of the victims, however, a third person can have the right to demand the insurer to compensate for damage (Article 724(2) of the Commercial Act). Accordingly, the insurer cannot pay the insured amount in part or in whole to the insured before a victim is compensated for the damage (Article 724(1) of the Commercial Act), and the victim can directly demand the insurer to compensate for any damage attributable to the insured, within the limit of the insured amount.
Opinions are divided over the relationship between offender’s liability for damages and insurer’s liability for insurance claims. There are two theories: one is the theory of claim for damages and the other is the theory of insurance claim. The legal precedent first adopted the latter and later opted for the former. Accordingly, it is viewed that the insurer assumes the offender’s liability for damages and the liabilities of the insured (offender), and the insurer are fundamentally the same, which means they share the joint and several liabilities. The legal ground for the joint and several liabilities must be found in the provisions recognizing a direct insurance claim. The relevant provisions allow the victims to file a claim for damages with the insurance company, which is the right, established based on the general liability law. Thus, it can be said that the victim’s right to claim damages directly to the insurer is obtained through assumption of liability by law. In this aspect, it can be understood that the insurance companies and the victims are in a relationship formed by law, in which the victims exercise a direct insurance claim and the insurance companies make insurance payments.
3) Determination of unfair trade practice as an act of providing disadvantages in the process of performing obligation
The relations among the victims, the insurers and the insured are focused on how the victims can pursue a remedy for the damage. On the victims’ side, the relationship with the insured is based on the legal liability for the damage caused in an illegal accident, and the insurance companies, along with the insured, assume the liability for damages pursuant to the provisions on a direct insurance claim. Thus, the victims’ relationship with the insurers can be seen as a relationship of legal liability, not of contractual liability. In this regard, the insurance companies have only a relationship with the insured through an insurance contract, not any contractual relationship with the victims. The Seoul High Court looked at the present case from this point of view.