[2] In a case where the parties to the contract have determined the content of the contract in advance as to the non-existence of causation between the breach of duty of disclosure and the occurrence of the insurance accident (=contractor's side) and the distribution of the burden of proof (=effective)

[3] The case holding that the insurer may terminate the insurance contract on the ground of a violation of the duty of disclosure, and it is interpreted that only the insurer bears the duty of insurance payment, even if there is no causation between the duty of disclosure and the occurrence of

[4] In a case where there is a benefit in confirmation to seek a direct confirmation of the previous legal relations or the validity of a legal act

[5] Where a contract of disclosure is terminated due to violation of duty of disclosure after occurrence of an accident in cancer insurance, the scope of duty to pay insurance money

[2] In principle, as to whether there exists a causal relationship between the policyholder's violation of the duty of disclosure and the insurance accident of the insurance contract, the policyholder who claims the payment of insurance money does not have a causal relationship, which is a requirement for the occurrence of the obligation to pay the insurance money. However, if there is a prior determination between the parties on the allocation of the burden of proof under the terms and conditions, the contract of burden of proof shall be valid,

[3] The case holding that the insurer may terminate the insurance contract on the ground of a violation of the duty of disclosure, and it is interpreted that only the insurer bears the duty of insurance payment, even if there is no causation between the breach of the duty of disclosure and the occurrence

[4] Even if a legal relationship is in the past, if a dispute over the current legal relationship is actually settled through confirmation and becomes an effective and appropriate means to resolve disputes, the interest in confirmation shall be deemed to have the standing to file a claim. Even if it is directly subject to confirmation of the existence or invalidity of a legal act, which is not a legal relationship, it is also allowed in a case where a dispute over a number

[5] The proviso of Article 655 of the Commercial Code provides that the insurer shall be liable for an insurance accident which has no causal relationship with the duty of disclosure. In this case, the insurer's liability extends to the whole of the insurance accident within the scope of a single insurance accident identified in the whole. Since the benefit for treatment, surgery, hospitalization, and ventilation in cancer insurance is a single insurance accident called cancer diagnosis confirmation, if the insurance period has been in the insurance period, the insurer shall be liable to pay insurance proceeds from operation, hospitalization, and pains even after the termination of the insurance contract.

2. The defendant's remaining appeal is dismissed.

3. The total cost of a lawsuit shall be two minutes, one of which shall be borne by the plaintiff, and the remainder by the defendant.

With respect to the Plaintiff KRW 33,400,000 and KRW 31,400,000 among them, the Defendant shall pay to the Plaintiff an amount equivalent to 20% per annum from the day following the day when the copy of the complaint of this case was served to the day when the application for modification of the purport of this case was served on June 8, 2004 to the day of each complete payment, and the Defendant shall confirm that the termination of the insurance contract for the Plaintiff on July 30, 2002 by the contractor Kim Young-min, the insured Plaintiff’s certificate number 0481089210,000 is invalid.

2. Purport of appeal

The judgment of the first instance is revoked, and all of the plaintiff's claims are dismissed.

The following facts are either disputed between the parties, or acknowledged by adding the whole purport of the pleadings to the statements in Gap evidence 1-1, 2, 2-1, 2-2, 11-1, 2, 6-2, and 8.

A. On December 28, 2001, Non-party Kim Young-jo entered into an insurance contract with the defendant for the insured and the beneficiary for hospitalization disability; the insurance period from December 28, 2001 to December 18, 2046; and the insurance amount was KRW 10,000,000 for the main contract (hereinafter referred to as the "instant insurance contract").

B. The terms and conditions of the instant insurance contract provide that the amount of 6,00,000 won per day shall be paid in cases where the diagnosis is finalized with high-level cancer, such as ambat (ambat) at a time less than one year from the date of the contract; the amount of 1,00,000 won per day in cases of hospitalization; the amount of 1,00,000 won in cases of hospitalization; the amount of 5,00,000 won in cases of surgery; the amount of ambats per time in cases where surgery is performed; 3,00 won in cases where hospitalization is continued for 31 days or more; 50,000 won per day in cases of hospitalization; and 31 days in cases where hospitalization is continued, the amount of ambats per day in excess of 30 days per day.

C. On June 28, 2002, the Plaintiff confirmed the diagnosis of the peltom (C) and claimed insurance payment to the Defendant. On July 30, 2002, the Defendant terminated the instant insurance contract on the ground that the above Kim Young-si, a policyholder, violated the duty of disclosure intentionally or by gross negligence, and paid the insurance money and refund money up to the date of termination.

D. After that, the Plaintiff was hospitalized on September 13, 2002 and on December 5, 2002 for the treatment of the alleys (amam) twice. Since August 1, 2002, the Plaintiff was hospitalized on 191 days since September 10, 2002, and 64 days from November 13, 2002 to 32 days from February 20, 203 to April 2, 2003 respectively, and was hospitalized on 40 occasions.

2. The parties' assertion

The plaintiff asserted that the defendant is obligated to pay the insurance money under the insurance contract of this case, since the plaintiff was diagnosed as a peltom for the purpose of treatment after undergoing an operation for the purpose of treatment. The defendant asserts that the defendant is not obligated to pay the insurance money since the insurance contract of this case was lawfully terminated by the defendant's notice of termination on the ground that the contract of this case was lawfully terminated by the defendant's notice of termination on the ground that the contract of this case was in violation of duty of disclosure.

As to this, at the time of the conclusion of the instant insurance contract, the Plaintiff notified the Hong Gyeong, an insurance solicitor, the Defendant, of the fact that the above Kim Young-si was treated as the Defendant’s insurance solicitor, and thus, the Defendant’s termination is unlawful. Even if the Plaintiff violated the domestic duty of disclosure, it cannot be said that the violation of the duty of disclosure was affected by the occurrence of the insurance accident since there was no causal relationship between the large-scale retirement visa and the peltom (am) occurrence, and thus, the Defendant is liable to pay the insurance money

3. Judgment by issue

A. Whether the duty of disclosure is violated

(1) Facts recognized

The following facts may be acknowledged by adding up the whole purport of the pleadings to Gap evidence 5, Eul evidence 3, Eul evidence 6, Eul evidence 7, and the testimony of the witness of the first instance trial.

(A) The terms and conditions of the insurance contract of this case stipulate that "the contractor or the insured shall inform the insured of the fact that they are aware of the matters asked in the subscription form at the time of the subscription (Article 22)" as to the duty of disclosure under the Commercial Act of the insured, and in relation to the effect of the breach of the duty of disclosure, "if the contractor or the insured violates the duty of disclosure that affects the occurrence of the cause of payment of insurance money due to intentional or gross negligence, the insurance company may terminate the contract regardless of whether the cause of payment of insurance money occurred (Article

(나) 이 사건 보험계약 체결 당시 위 김영미는 청약서를 작성함에 있어 '계약 전 고지의무'라는 제목의 아래에 보험의 인수 여부를 결정하는 데 필요한 5가지 항목에 대하여 자필로 사실 여부를 기재할 것을 요구받았는데, "최근 3년 이내에 질병이나 증상으로 7일 이상 계속하여 치료, 복약, 입원하였거나 또는 수술, 정밀검사를 받은 적이 있습니까?"라는 질문 항목에 대하여 "아니오"라는 취지의 답변란에 표시(∨)를 하였고, 고지사항이 사실과 다름 없고, 계약자 본인이 직접 작성하였음을 확인하는 자필서명란에 서명하였으며, 다만 보험모집인인 위 홍경성에게 원고가 고관절 통증으로 3일 정도 병원에서 물리치료를 받았다고만 말하였다.

(C) However, the Plaintiff received treatment eight times from October 10, 200 to January 31, 2001, prior to the conclusion of the instant insurance contract.

(D) On the other hand, the above Kim Young-dong subscribed to the insurance contract of this case for children to the insured as well as to subscribe to the insurance contract of this case for children to the insured, and as at the time, his father was notified of the fact that he received hospital treatment, the insurance contract for his father was rejected.

(2) Determination:

The duty of disclosure means that the insurer determines the scale of the risks he/she accepts in entering into an insurance contract and determines whether to enter into the insurance contract or the terms and conditions of the insurance contract. Since the risk measurement data is ordinarily difficult for the insurer to investigate them within the control of the policyholder, the insurer imposes a duty of cooperation on the policyholder. "Important matters" under Article 651 of the Commercial Act, which is the subject of the duty of disclosure, refers to the standard for the insurer to determine whether to enter into an insurance contract by measuring the occurrence of the insured events and the commencement rate of liability arising therefrom, or to determine the contents of the insurance contract, such as addition of the premium or special exemption clause, if the insurer knows the fact objectively, it is thought that the insurer would not enter into the insurance contract, or would not enter into the contract at least on the same condition. The question stated in the above subscription document, which, barring special circumstances, can be deemed to constitute "important matters".

Furthermore, if the plaintiff violated the duty of disclosure as to the question stated in the above subscription form, if the facts are the same as above, the above Kim Young-un stated that the plaintiff had received eight consecutive medical treatment by large-scale withdrawal visa, but the plaintiff did not notify the defendant of the matters to be notified intentionally or by gross negligence in entering into the insurance contract of this case. The plaintiff did not inform the contract of this case that the plaintiff should be notified to the defendant intentionally or by gross negligence, and even if the plaintiff's continued medical treatment is considered to have continued to receive medical treatment at the hospital every day in the case of long-term medical treatment, the plaintiff continued to receive medical treatment within one year before entering into the insurance contract of this case with large-scale withdrawal visa, and the plaintiff's wife's wife's incidental was refused to receive medical treatment on the ground that there was a natural consciousness. In light of the above, the fact that the plaintiff received medical treatment by large-scale withdrawal visa is an "material matter to be considered in determining whether to enter into the insurance contract and determining the terms and conditions of the insurance contract," and the above Kim Young-U.

(b) Whether the termination of the contract has been void and whether the lawsuit for confirmation has been filed;

(1) Validity of termination of the contract

(A) The question is raised

Article 651 of the Commercial Act provides that "a contract may be terminated when the policyholder or the insured, at the time of the insurance contract, fails to notify material facts intentionally or by gross negligence, or makes a false notification." Meanwhile, Article 655 of the Commercial Act provides that "after the occurrence of the insurance accident, if the insurer has terminated the contract in accordance with the provisions of Article 651, even after the occurrence of the insurance accident, he shall not be liable for paying the insured amount and may demand the return of the insured amount which has been already paid." However, this provision shall not apply where it is proved that the

According to the Commercial Code, if there is no causal relationship between the occurrence of the insurance accident even if the duty of disclosure is violated, the insurer is obligated to pay the insurance money. In such a case, it is a question whether the insurance contract can be terminated on the ground of the breach of duty

(B) Existence of causation

First of all, as to whether there exists a causal relationship between the plaintiff's breach of duty of disclosure and the insurance accident of this case, there is no causal relationship, in principle, between the plaintiff's duty of disclosure and the plaintiff's obligation of payment of insurance money (see Supreme Court Decision 92Da28259 delivered on October 23, 1992, Supreme Court Decision 92Da52085 delivered on April 13, 1993, Supreme Court Decision 92Da52092 delivered on April 13, 1993, etc.). However, according to the evidence evidence evidence No. 6, Article 22 (4) of the Clause of the insurance contract of this case provides that "where a communications agency fails to prove that the fact of violation of duty of notification has affected the cause of payment of insurance money, the insurance money concerned shall be closed if it is determined in advance between the parties as to the allocation of burden of proof by the terms and conditions, the burden of proof shall be valid, and therefore, if the defendant bears the burden of proving the causal relationship with the insurer.

In addition, if there is room to look at even the causal relationship between the violation of the duty of disclosure and the occurrence of the insurance accident, an insurer shall not be obliged to pay insurance proceeds (see Supreme Court Decision 93Da52082 delivered on February 25, 1994, Supreme Court Decision 97Da33089 delivered on October 28, 1997, etc.). In this case, whether there is room to look at the causal relationship between the plaintiff's medical treatment without notifying the medical treatment and the pelvis (amam) occurrence between the insurance accident of the insurance contract of this case and the result of the first instance court's response to the fact inquiry of the first instance court, there is no other evidence to acknowledge it. Rather, according to the statement No. 8, No. 9, and the appraisal result of the first instance court's request to the head of Lan National University and the head of Han National University's subsidiary University of the first instance court, according to the appraisal result, there is no causal relationship between the pelump and the pelumm (am).

(C) Requirements for termination of the insurance contract (in relation to section 651 and section 655 of the Commercial Code)

Article 651 of the Commercial Act provides that the right to terminate an insurance contract on the ground of violation of the duty of disclosure, and Article 655 of the Commercial Act provides that the obligation to pay insurance money already incurred shall be retroactively exempted if the contract is terminated on the ground of violation of the duty of disclosure after the occurrence of an insured incident, and provides exceptions to the general principles of the Civil Act, which provides that the future effect of termination shall not be recognized, and the proviso of the same Article provides that the same shall not apply to the case where there is no causation. Meanwhile, Article 651 of the Commercial Act provides that the limitation period in addition to the occurrence of the right to terminate the contract and the reasons that the insurer's intention or negligence is limited to the occurrence of the right to terminate the contract, and does not provide additional requirements or grounds for restriction. Accordingly, Article 651 of the Commercial Act recognizes the right to terminate the contract regardless of the occurrence of an insured incident. Article 655 of the Commercial Act provides only the existence of the obligation to pay insurance money in relation to the effect of termination after the occurrence of an insured incident.

If it is deemed that the right to terminate the insurance contract does not take place in view of the fact that the insurance contract exists even after the occurrence of the insurance accident, such as the insurance contract in this case, even after the payment of the insurance money, and the occurrence of the insurance accident for which the duty of disclosure is recognized as a causal relationship after the occurrence of the insurance accident, such as the insurance contract in this case, the occurrence of the insurance accident will not be able to exercise the right to terminate even after the occurrence of the occurrence of the insurance accident for which the duty of disclosure is recognized as a causal relationship, and even if there exists a causal relationship, it would result in unreasonable result that the insurer should pay the insurance money despite the lapse of the exclusion period of Article 651 of the Commercial Act, which is 3 years from the date of the conclusion of the contract, and it would result in an unreasonable result that the duty of disclosure would make the insurer conduct accurate assessment of the risk and avoid the risk of bad faith. It is not consistent with the nature of the system, and if the duty of disclosure prior

(2) Whether a lawsuit for confirmation is lawful

Inasmuch as the Plaintiff seeking the payment of insurance proceeds and seeking the confirmation of invalidity of the termination of a contract made by the Defendant, it is possible to seek a direct confirmation on the validity of such past juristic act and to seek such confirmation, even if there is a benefit in the past legal relationship, if a dispute over the current legal relationship is actually settled and becomes an appropriate means for dispute resolution, it shall be deemed that the current legal relationship becomes entitled to a claim for the benefit of confirmation. Even if a dispute over the current legal relationship becomes an object of direct confirmation, not a legal relationship, it shall also be permitted in cases where a dispute over a large number of legal relationships is resolved. If there is a dispute over the invalidity or invalidity of the termination of a contract made by the Plaintiff and the Defendant, and if it is confirmed that the termination of a contract is null and void, the existence of the claim for insurance proceeds accrued after the termination of an insurance contract and the current apprehension about the status as a beneficiary, and thus, it shall be deemed that there is a legal interest of immediate confirmation.

In addition, even if the plaintiff filed a performance suit seeking the payment of insurance money along with the claim for confirmation, unlike the case of seeking only the confirmation of the right to claim the performance, there is a benefit of confirmation.

(c) the existence and scope of the obligation to pay insurance proceeds;

The fact that the plaintiff was confirmed to be diagnosed of Alley-type, and the fact that the beneficiary of hospitalization disability in the insurance contract of this case is the plaintiff is the beneficiary of the insurance under the insurance contract of this case as seen earlier, barring any special circumstance, the defendant is liable to pay the insurance proceeds under the insurance contract

On the other hand, the defendant alleged that the insurance contract of this case was terminated on the ground of the violation of duty of disclosure, and therefore, the defendant's termination of the insurance contract of this case by violating duty of disclosure was acknowledged as above, but there is no causation between the violation of duty of disclosure and the insurance accident. Thus, this part of the defendant's assertion is without merit.

Furthermore, with respect to the scope of the obligation to pay insurance money, the proviso of Article 655 of the Commercial Act provides that the insurer shall be liable for the insurance accident which has not violated the obligation to notify and has no causation. In this case, the insurer's liability covers all of the insurance accidents within the scope of a single insurance accident, which is entirely understood as one of the insurance accidents. As the benefit for treatment, operation, hospitalization, and outpatients in cancer insurance is based on a single insurance accident called the confirmation of cancer diagnosis, if the confirmation of cancer diagnosis was during the insurance period, the insurer has the obligation to pay insurance money due to the operation, hospitalization, and ventilation after the termination of the insurance contract.

With respect to the instant case, the Plaintiff is obligated to pay insurance proceeds under the insurance contract of this case to the Plaintiff in the event that the Plaintiff performed operation, hospitalized operation, or operated for a direct treatment of the said alley cancer. Thus, the Defendant is obligated to pay the Plaintiff insurance proceeds under the insurance contract of this case. As such, the Defendant is obligated to pay the Plaintiff insurance proceeds in the amount of KRW 10,000 (5,00,000 x 2), KRW 19,100,000 (191 x 100,000), KRW 2,00,00 (40 x 50,000), and KRW 2,00,00 for the cancer savings prior to the termination of the instant insurance contract. The Defendant is obligated to pay the Plaintiff insurance proceeds in the aggregate of KRW 10,000 (50,000 x 50,000 (64-30 - - 430) x 50,000).

(d) argument for the invalidation of a contract and determination thereof;

In this regard, the defendant asserts that the insurance contract of this case was null and void since it was concluded without the written consent of the plaintiff who is the insured, but it is necessary to give written consent when the death or bodily injury of the other person is an insurance accident, and since the insurance contract of this case is an insurance accident, it is necessary to give written consent since it is a disease of diagnosis of cancer, so

3. Conclusion

Therefore, the defendant is obligated to pay to the plaintiff 3,400,000 won insurance money and 31,400,000 won from April 15, 2003, which is the day following the day when the copy of the complaint of this case was served to the plaintiff, and 2,000,000 won from June 8, 2004 from June 9, 2004 to each full payment date, for delay damages at the rate of 20% per annum under the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings. The termination of the insurance contract of this case on July 30, 202 by the defendant is lawful and effective.

Therefore, the plaintiff's claim for the payment of insurance money shall be accepted on the ground of its reasoning, and the claim for confirmation of the cancellation of the insurance contract shall be dismissed on the ground of its ground of its ground. Since the part against the defendant as to the claim for confirmation of nullity of the insurance contract among the judgment of the court of first instance which has different conclusions is unfair, the part of the plaintiff's claim is revoked

Judges Yan Ho-hun (Presiding Judge)