IV. Concluding Remarks
1. Practical Implications
Korea ranks first among OECD member countries in car accident rate. In 2005, the number
of registered cars stood at 15,396,715 units (excluding two-wheeled vehicles) and about 1.7
million car accidents occurred per year in Korea. Non-life insurance companies handle more
than two million property damage accidents under automobile insurance policy each year.
Furthermore, most of the compensation for the victims in car accidents is undertaken by nonlife
insurance companies, which implies that automobile insurance has a significant effect on
everyday life of the people in Korea. Under these circumstances, non-life insurers did not
actively explain to the victims that they were entitled to indirect damage insurance payments,
such as compensation for non-operation and automobile depreciation. They also did not
properly provide indirect damage compensation payments, taking advantage of the fact that
the victims were not well aware of the payment standards in the insurance policy.
With the corrective measures imposed against this case, non-life insurance companies will
likely provide information on indirect damage insurance payments more actively and do best
effort to compute and pay indirect insurance payments such as compensation for nonoperation
and automobile depreciation, in addition to direct damage compensation. This case
will contribute to eradicating improper damage compensation for the victims, thereby
significantly enhancing the welfare of insurance consumers.
2. Legal Implications
The KFTC’s decision and the court’s judgments have clarified the meaning of the term
“trade” under the MRFTA, interpreting the scope of the concept in a comprehensive manner.
In line with the opinions of most academics, the KFTC and the courts defined trade as a
general means for the business activities or trading order, instead of individual contracts. It is
meaningful that the grounds for the insurers’ argument were not accepted. Their logic was
that a direct trading relationship between the parties needs to be recognized. However,
according to the KFTC’s decision and the courts’ judgments, even without a direct trading
relationship, an act of unfair trade practice could be acknowledged if a conduct is seen as
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performance of legal obligations in a trading relationship. In other words, a relationship for
the claim for damages associated with an illegal act can be recognized as a trading
relationship if the insurers determine the items of compensation for damaged cars in order to
fulfill their obligations under the insurance contracts. It is a significant judgment that,
although the insurer-victim relationship is formed based on legal provisions on a direct
insurance claim, a trading relationship is acknowledged as long as the insurers’ obligation to
compensate the victims for the property damage is defined in the insurance contracts.
In this regard, an important standard has been defined for determination of unfair trade
practices. The main focus of the MRFTA should be the actual aspects of trade practice.
Determination based only on legal principles is meaningless. In the present case, the ground
for determination was an actual relationship between the parties, which was determined based
on an intention of the parties to form neither trading relationship nor a legal act. It is also
important that the rulings pointed out an unfair trade practice can be easily committed during
performance of the damage compensation obligation. This logic can be applied extensively to
insurance contracts for a third party.
In addition, it was reconfirmed that a superior position should be recognized after
considering market conditions, difference in business capabilities of the parties concerned,
and the characteristics of goods to be traded. The factors considered in this case include
information imbalance, no right to choose an insurer, receipt of payments as computed by
insurers, specialized or technical information, contractual terms of the insurance policy, no
payment in a large scale, and the possibility of paying a uniformly calculated amount.
Furthermore, it was explicitly ruled that even an “omission” to do something can be
recognized as an act of providing disadvantages. In other words, an act of providing
disadvantages includes not only an active engagement in a conduct to the disadvantage of
trading partners but also an omission to bear the costs or perform the liability. The idea
behind this ruling is that it is necessary to strictly enforce the law against the acts contrary to
the primary purpose of an insurance system.
To conclude, the Court decided that it was contrary to customary trade practices to provide
disadvantages for individual victims who wanted to be compensated for their damage through
insurance policies and also contrary to leave many victims not filing a claim for indirect
damage compensation.