자동차사고로 인한 손해배상

이 책에는 자동차사고를 당했을 경우 손해배상을 청구하는 복잡한 처리 문제들을 기본법들인 도로교통법과 자동차 손해 배상법 및 교통사고처리특례법에 의해 그동안 특히 많이 발생한 교통사고들을 분야별로 정리하여 사고가 발생하였을 경우 신속하고 정확하게 손해배상을 청구할 수 있도록 대법원 및 대한법률구조공단에 나타난 자료들을 참고하여 누구나 알기 쉽게 문답식으로 일목요연하게 꾸몄습니다.

목 차

제1장 자동차사고로 인한 손해배상
1. 자동차운행자의 책임 ·············································································· 3
1-1. 의 의 ···································································································· 3
1-2. 자동차손해배상보장법의 적용범위 ····················································· 3
2. 자동차운행자 책임의 성립요건 ······························································ 4
2-1. 성립요건 ······························································································· 4
2-2. 자동차를 운행하는 자일 것 ································································ 4
3. 손해배상의 종류 ···················································································· 11
3-1. 자동차 운전에 따른 손해 배상 ························································ 11
3-2. 자동차손해배상 보장법에 따른 손해배상 ········································ 11
3-3. 자동차 보유자의 손해배상 책임 ······················································ 12
3-4. 민법에 따른 손해배상 ······································································· 12
4. 자동차손해배상 보장사업 ··································································· 13
4-1. 정부의 자동차사고 피해자 보상 ······················································ 13
4-2. 교통사고 피해자의 지원 ··································································· 13
4-3. 피해자의 배상 청구 ·········································································· 15
5. 도로의 관리부족으로 차량 파손 등 손해발생시 국가배상청구 ········· 46
5-1. 국가배상청구 ······················································································ 46
5-2. 도로 관리청의 확인 ·········································································· 46
5-3. 배상심의회에 배상 신청 ··································································· 46
■ 교통신호기의 고장으로 교통사고가 발생한 경우 누가 책임을 지는
지요? ··································································································· 47
■ 상호 모순된 교통신호기의 신호로 교통사고 발생한 경우 국가를 상
대로 국가배상청구를 할 수 있는지요? ············································ 50
■ 교통할아버지의 수신호 잘못으로 교통사고 발생한 경우 손해배상을
지방자치단체가 하여야 하는지요? ··················································· 52
■ 보행자 신호기가 고장 난 횡단보도 상에서 교통사고가 발생한 경우
국가배상책임이 인정되는지요? ························································· 54
■ 일반 국도상의 적설로 인한 교통사고가 발생한 경우 손해배상청구
을 청구할 수 있는지요? ··································································· 55
■ 교통사고로 인도에 설치된 전신주가 넘어지면서 화재가 발생한 경
우 손해배상을 전주를 설치한 한국전력공사에게 청구할 수는 없는
지요? ··································································································· 58
6. 민사소송으로 손해배상 청구 ································································ 62
6-1. 소장의 작성방법 ·············································································· 62
6-2. 사건의 표시 ······················································································· 63
6-3. 소가 산정 ··························································································· 64
6-4. 소장부본 ····························································································· 65
[서식] 손해배상(자)청구의 소(농부 사망, 시내버스) ···························· 66
[서식] 손해배상(자)청구의 소(일용직 잡부 사망, 영업용택시) ············ 72
[서식] 손해배상(자)청구의 소(월급생활자 사망, 보험가입한 승용차) · 77
[서식] 손해배상(자)청구의 소(개인택시 운전기사 사망, 무보험 승용차)
······································································································ 84
[서식] 손해배상(자)청구의 소(미성년 남자고등학생, 부상) ················· 90
[서식] 손해배상(자)청구의 소(유아사망, 보험가입한 승용차) ·············· 94
[서식] 손해배상(자)청구의 소(여고생사망, 호프만수치 240넘는 경우) 99
[서식] 손해배상(자)청구의 소(성년피해자 부상, 일부청구) ··············· 104
[서식] 손해배상(자)청구의 소(군필자사망, 호프만수치 240넘는 경우)
···································································································· 107
[서식] 손해배상(자)청구의 소(일용직 형틀목공 사망, 영업용 화물차)
···································································································· 111
[서식] 손해배상(자)청구의 소(성직자 사망, 절도차량, 소유자 책임 없음)
···································································································· 115
[서식] 조정신청서{손해배상(자)청구} ·················································· 120
[서식] 답변서{손해배상(자)에 대한 항변} ··········································· 123
[서식] 답변서{손해배상(자)} ································································· 125
[서식] 준비서면{손해배상(자), 원고} ··················································· 127

제2장 자동차사고에 대한 손해배상 상담사례
■ 도난당한 차량으로 교통사고를 낸 경우 차량소유자가 배상책임을
져야 하는지요? ················································································ 131
■ 신원 불상의 도주차량에 교통사고를 당한 피해자는 보상금을 어디
에 어떻게 청구해야 하는지요? ······················································· 133
■ 대리운전기사에 의한 대리운전 중 발생한 교통사고에 대한 책임은
누구에게 있나요? ············································································· 137
■ 보험사 지급 가불금이 교통사고 손해배상청구권 중 재산상 손해에
만 미치는지요? ················································································ 140
■ 운전자들의 공동불법행위로 인한 교통사고로 인해 한쪽 차량에 타
고 있던 호의동승자가 사망한 경우, 호의동승을 이유로 한 책임감
경이 공동불법행위자들 모두에게 적용되는지요? ·························· 141
■ 고소작업차의 와이어 단절로 인한 사고의 경우, 보험약관상 ‘교통사
고로 인한 상해’로 볼 수 있는지요? ·············································· 143
■ 채권담보의 목적으로 자동차등록원부상 자동차의 소유자로 등록된
자가 운행자의 교통사고에 대하여 책임을 부담하는지요? ··········· 145
■ 대물변제로 채권자에게 인도된 채무자 명의차량의 교통사고로 인한
책임은 누가 부담하여야 하는지요? ··············································· 150
■ 자동차의 복수의 운행자 중 1인이 다른 운행자에게 교통사고에 따
른 손해배상을 구할 수 있는지요? ················································· 152
■ 교통사고 피해자가 자살한 경우 자살에 따른 손해를 교통사고 가해
자에게 구할 수 있는지요? ······························································ 154
■ 미성년자가 교통사고를 낸 경우 부모에게 손해배상 청구가 가능한
지요? ································································································· 154
■ 교통사고로 정신적 장해가 발생한 경우 개호비 손해가 인정되는지요?
·········································································································· 155
■ 교통사고 피해자가 손해배상청구 포기 약정을 한 경우, 그 효력이
부모들이 가지는 위자료 청구권에 미치는지요? ··························· 155
■ 고소작업차의 와이어가 끊어지면서 추락하여 사망한 경우 보험약관
에서 정한 자동차 운행 중의 교통사고에 해당하는지요? ············· 156
■ 책임보험 보험자로부터 보험금을 수령하였음에도 위탁받은 보험사
업자로부터 또다시 피해보상금을 수령한 경우, 위 보험사업자의 부
당이득반환청구권의 소멸시효기간은? ············································ 158
■ 자동차의 소유자로부터 수리를 받은 자가 다시 다른 수리업자에게
수리를 의뢰하여, 그 수리업자가 자동차를 운전하여 자신의 작업장
으로 돌아가던 중 교통사고를 일으킨 경우 원래의 수리업자도 다른
수리업자와 공동으로 손해배상책임을 지는지요? ·························· 160
■ 교통사고 시 민사 이외에 별도로 형사상 위로금을 청구할 수 있는
지요? ································································································· 161
■ 기획여행계약 중 교통사고가 발생한 경우 여행업자에게 손해배상을
청구할 수 있나요? ··········································································· 163
■ 교통사고로 인한 후유장애와 청구할 수 있는 손해배상의 내용은 어
떻게 되는지요? ················································································ 164
■ 교통사고로 상해를 입고 입원 후 치료받던 중 병원시설의 하자로
인하여 사망한 경우 병원은 사망으로 인한 손해 전부에 대하여 배
상책임을 지는지요? ········································································· 166
■ 유치원생이 귀가하던 중 교통사고를 당한 경우 유치원교사 등에게
손해배상을 청구할 수는 없는지요? ··············································· 167
■ 교통사고로 사망한 자가 생명보험에 가입된 경우 생명보험으로부터
받는 보상금액만큼은 제외하고 배상을 하겠다는데 타당한지요? 170
■ 교통사고와 관련한 형사합의금이 손익상계의 대상이 되는지요? · 172
■ 일시 체류 중 교통사고로 사망한 재외거주국민의 노동가능연한의
기준을 어느 나라의 것으로 산정하여야 하는지요? ······················ 174
■ 직업이 있었던 장애인이 교통사고로 사망한 경우 일실수입은 어떻
게 산정하여야 하는지요? ································································ 175
■ 교사임용 전에 당한 교통사고 후유증으로 교직을 그만 둔 경우 일
반통계에 의한 수입의 평균수치 등을 기초로 하여 일실수입을 산정
할 수 있는지요? ·············································································· 177
■ 공상군경이 교통사고로 사망한 경우 손해배상액의 산정에서 유족보
상금이 공제되는지요? ····································································· 179
■ 교통사고로 인한 손해배상액을 산정할 때 피해자에게 초기 치매 증
세가 있다는 이유로 일실소득을 감액할 수 있을까요? ················ 181
■ 교통사고 후 근로수당을 계속받는 경우 손해배상액에서 공제되어야
하나요? ····························································································· 181
■ 고속도로에서 보행중 교통사고가 발생한 경우 보행자는 어떤 책임
이 있나요? ······················································································· 183
■ 소멸시효를 이유로 공동불법행위자의 구상권을 거절할 수 있는지요?
·········································································································· 187
■ 자동차임차인이 운전 중 과실로 사망한 경우 임대회사는 어떤 책임
을 지나요? ······················································································· 190
■ 피보험자로 취급되는 자가 사고를 낸 경우 보험자의 보험자대위에
의한 구상금을 청구할 수 있는지요? ············································· 192
■ 면책사유인 ‘피보험자의 고의에 의한 사고’에서 ‘고의’에 해당하여
보험금이 지급될 수 없는 경우인지요? ·········································· 194
■ 뺑소니의 경우 국가가 피해를 보상하면 국가기관이 보험사에게 이
를 다시 구상하는 것인가요? ·························································· 196
■ 기존 기왕증이 악화된 신체손해에 관한 자동차손해배상청구권 중
해당 기왕증에 대해 자동차손해배상으로 보험회사에 얼마를 청구할
수 있을까요? ·················································································· 198
■ 보험사가 교통사고 가해자에게 구상할 수 있는 범위는 어디까지 입
니까? ································································································· 200
■ 자동차손해배상보장법 제3조 '운행으로 인하여'의 판단기준은 무엇
인지요? ····························································································· 202
■ 가해자를 알 수 없는 차량에 치어 사망한 경우에 국가에서 피해보
상을 해준다고 하는데 사실인지요? ············································· 204
■ 무면허운전 중 상대방의 과실에 의해 부상당한 경우 국민건강보험
이 적용되는지요? ············································································· 206
■ 교통사고의 손해배상청구 시 보험회사를 상대로 바로 할 수 있는지
요? ···································································································· 209
■ 지입차량이 교통사고를 낸 경우 지입회사가 피해자에 대하여 손해
배상책임이 있는지요? ····································································· 210
■ 화물차에서 하역작업 중 부상한 경우 자동차손해배상 보장법이 적
용되는지요? ······················································································ 212
■ 정차한 버스에서 내리던 승객이 넘어져 다친 경우 운행 중의 사고
인지요? ····························································································· 214
■ 친구 아버지의 차량을 무면허로 운전하던 중 사고 낸 경우 보험회
사에 보상을 청구할 수 없는지요? ················································· 217
■ 도로에서 역주행 중이던 자전거와 자동차가 충돌한 경우의 과실비
율은 어떻게 되는지요? ··································································· 219
■ 중앙분리대를 넘어 무단횡단 하던 행인을 차량으로 충격한 경우의
과실비율은 어떻게 되는지요? ························································· 221
■ 교통사고 피해자가 기 지급받은 치료비가 감액될 수 있나요? ···· 224
■ 교통사고로 인한 손해배상청구권 시효소멸기간의 진행시점은 언제
부터인지요? ······················································································ 224
■ 피해자의 후유증이 교통사고와 기왕증이 경합하여 발생한 경우 손
해배상 범위는 어떻게 되나요? ······················································· 226
■ 불법행위로 훼손된 물건을 수리한 후에도 수리가 불가능한 부분이
남아있는 경우, 수리비 외에 수리불능으로 인한 교환가치의 감소액
도 통상의 손해에 해당하는지요? ··················································· 227
■ 구급차에 비치된 들것으로 환자를 하차시키던 도중 들것을 잘못 조
작하여 환자를 땅에 떨어뜨려 상해를 입게 한 경우, 자동차의 운행
으로 인하여 발생한 사고에 해당하는지요? ··································· 230
■ 친목계원이 운전한 차량에 탑승하여 다른 친목계원의 부친상에 다
녀오다 사망한 망인의 호의동승감액 비율은 어떻게 되는지요? ·· 232
■ 주차장에서의 사고에 대하여 가해자를 알 수 없는 경우, 주차장측
으로부터 보상을 받을 수 있는지요? ············································· 234
■ 관광버스의 1차사고로 잠시 갓길에 하차한 승객이 2차 사고로 사망
한 경우, 자동차손해배상보장법상 면책사유에 해당하는지요? ····· 236
■ 고속도로에서 후행 추돌사고로 선행 사고차량에서 흘러나온 휘발유
등에 불이 붙어 화재가 발생한 경우 손해배상 책임은 누구에게 있
나요? ································································································· 238
■ 도로 외 출입차와 직진차와의 사고에서 과실비율은 어떻게 되나요? 241
■ 정상주행하는 차량이 무단횡단하는 자전거를 충격한 경우 자전거
운전자가 손해를 배상해야 할 책임이 있는지요? ························· 242
■ 골목길에 주차시킨 오토바이 위에서 어린 아이가 놀다가 깔려 사망
한 경우 ‘운행으로 인한 사고’에 해당하는 것인가요? ·················· 244
■ 고속도로에서 2차 사고가 발생한 경우 과실비율은 어떻게 되나요? 246
■ 이전서류를 받은 자동차매수인이 명의이전을 미루던 중 사고가 난
경우 누구에게 책임이 있나요? ······················································· 248
■ 지게차로 적재한 직후 화물이 떨어져 사망 시 ‘운행으로 인한’ 사고
인지요? ····························································································· 251
■ 트레일러에 싣던 불도저가 전복되면서 사망한 경우 운행 중의 사고
인지요? ····························································································· 253
■ 자동차의 소유자가 대리운전을 시킨 경우 운행자책임을 지게 되는
것인지요? ························································································· 255
■ 정비업자에게 자동차를 맡긴 동안도 운행자 책임을 지게 되는 것인
지요? ································································································· 256
■ 공중접객업소의 주차요원에게 자동차와 열쇠를 맡긴 경우, 자동차손
해배상보장법 상의 운행자성이 인정되는 것인가요? ···················· 257
■ 동승자가 주차한 자동차에서 하차하다가 떨어져 다친 사고의 경우
에도 차량의 운행과 상당인과관계가 있다고 보아야 하는지요? ·· 258
■ 버스운전사의 과실로 일어난 사고에서 그 차의 안내원이 부상한 경
우 누구에게 책임을 물을 수 있는 것인지요? ······························· 259
■ 이삿짐센터 화물차에 부착된 고가사다리를 조작하던 중 발생한 사
고의 경우 자배법 상 '다른 사람'에 해당하는 것인지요? ············ 261
■ 자동차손해배상보장법 제3조에 규정된 ‘운행으로 말미암아’ 차량의
운행으로 인하여 위 사고가 발생한 것이라고 볼 수 있나요? ····· 263
■ 가사도우미의 일실수입은 언제까지 계산해야 하는지요? ············· 264
■ 교통사고 피해자에게 대차비용을 지급할 의무가 있는지요? ········ 265
■ 사고로 인하여 중고자동차 값이 하락한 경우 보험회사에게 사고차
량의 격락손해를 배상받을 수 있을까요? ······································ 265
■ 교통사고 합의후 예기치 못한 손해가 발생한 경우 그 합의의 효력
은 어떻게 되나요? ··········································································· 266
■ 수리비 외에 수리불능으로 인한 교환가치의 감소액도 통상의 손해
에 해당하는지요? ············································································· 267
■ 안전띠 미착용이 과실상계의 사유가 되는지요? ···························· 269
■ 보험금액의 총액이 피보험자가 입은 손해액을 초과하는 경우 각 보
험자가 보험금 지급채무에 대하여 부진정연대관계에 있는지요? 270

제3장 강화된 음주운전 처벌기준(윤창호법)
1. 도로교통법 개정이유 ·········································································· 273
2. 도로교통법 개정 주요내용 ································································· 273
3. 특정범죄 가중처벌 등에 관한 법률 개정이유 ·································· 274
4. 술에 취한 상태에서의 운전 금지 ···················································· 275
4-1. 음주운전 금지 ·················································································· 275
4-2. 과로한 때 등의 운전 금지 ··························································· 275
4-3. 운전할 때 복용이 금지되는 약물의 종류 ······································ 276
5. 위반시 제재 ······················································································· 276
5-1. 운전면허 정지·취소 및 운전면허 재취득 제한 ····························· 276
5-2. 벌칙 ·································································································· 277
■ 음주운전을 하다가 교통사고로 사람을 다치게 한 경우 어떤 처벌을
받게 되나요? ················································································ 279
■ 음주운전의 경우 운전의 개념에 ‘도로 외의 곳’을 포함하도록 한 도
로교통법 규정은 헌법에 위배되지 않나요? ··································· 281
■ 자동차가 약간 경사진 길을 따라 앞으로 움직여 차량 옆면을 충격
한 경우, 음주운전에 해당하는지요? ·············································· 283
■ 술에 취한 상태에서 운전할 의사 없이 조작을 잘못하여 차가 움직
인 경우 음주운전에 해당하는지요? ··············································· 285
■ 음주운전으로 인한 운전면허취소처분의 기준 및 불복절차는 어떻게
되는지요? ························································································· 287
■ 레이카크레인을 음주운전한 경우 1종 보통면허도 취소되는지요? 289
■ 12인승 승합차를 음주운전한 경우 1종 특수면허도 같이 취소되는지요?
·········································································································· 291
■ 특정범죄가중처벌 등에 관한 법률상 ‘위험운전치사상죄’와 도로교통
법상 ‘음주운전죄’는 별도로 성립하여 처벌받게 되는지요? ········· 293
■ 음주운전을 일시 중단한 운전자에게 음주측정불응죄가 성립할 수
있는지요? ························································································· 294
■ 제1차 사고 당시의 음주운전으로 기소되었을 경우 도로교통법 위반
(음주운전)죄로 다시 처벌되는지요? ··············································· 296
■ 음주운전에 대한 약식명령이 확정된 후 무면허운전을 처벌할 수 있
는지요? ····························································································· 299
■ 주차장에서의 음주운전도 도로교통법상 음주운전인지요? ············ 301
■ 도로교통법 상의 도로 외의 곳에서 음주운전 중 사고가 발생한 경
우 피해자와 합의하거나 종합보험에 가입되어 있다면 처벌받지 않
는지요? ····························································································· 302
■ 대학 구내에서 음주운전한 것이 도로교통법상 음주운전인지요? · 303
■ 호흡측정기 음주측정결과가 음주운전의 절대적 증거인지요? ······ 304
■ 주차장에서의 음주운전하다가 지나가던 경찰관에게 적발되어 음주
운전으로 인한 「도로교통법」 위반으로 벌금형의 약식명령을 받았는
데, 이것이 정당한지요? ·································································· 307
■ 대리운전기사의 차량 이탈 후 차를 운전하여 안전한 장소에 주차하
게 되었을 경우 음주운전으로 처벌받게 되는지요? ······················ 310
■ 음주운전 후 지인에게 허위자수를 교사한 자는 어떻게 처벌받게 되
나요? ································································································· 311
■ 운전면허가 정지된 상태에서 운전하였을 경우 무면허운전이므로 무
보험자동차에 의한 상해보험금을 지급받을 수 없는지요? ··········· 312
■ 종합보험약관상 자기차량 손해에 있어서 음주운전한 경우 자기차량
손해보험금을 지급받을 수 없는지요? ············································ 315
■ 종합보험약관상 자기신체사고 손해에 있어서 음주운전한 경우 보험
혜택을 받을 수 없는지요? ······························································ 316
■ 형사상 불기소처분 받아도 보험계약의 음주운전 면책약관 적용이
가능한지요? ···················································································· 318
■ 음주운전을 한 피보험자의 자기부담금 특약의 해석은 어떻게 해야
하나요? ····························································································· 319
■ 음주운전 차량에 함께 타고 가다 사고가 발생한 경우, 동승자가 보
험사에 손해배상액 전부를 청구할 수 있을까? ····························· 320
■ 회사 회식 후 음주운전을 하다가 사망한 경우 업무상 재해성에 해
당하는지요? ······················································································ 321

부 록
자동차 손해배상 보상법 ·········································································· 325