[2] In a case where Party A, a non-life insurance company, concluded an insurance contract with Party B on freezing and freezing buildings, but did not notify Party B of the fact that the building which is the subject matter of the insurance was not completed at the time of the conclusion of the insurance, the case holding that the lower court erred by misapprehending the legal principles as to the violation of the duty of disclosure on the ground that Party A was sufficiently aware of, or was not aware of, the aforementioned circumstances due to significant negligence, in light of the overall circumstances

[2] The case holding that the judgment below erred in the misapprehension of legal principles as to the violation of the duty of disclosure, on the ground that, in case where Gap concluded an insurance contract with Eul running non-life insurance business, and did not notify Eul of the circumstances that the building which is the subject of the insurance should continue to perform the remaining construction due to the lack of the construction work, such as freezing equipment, despite the formal approval of use, and the remaining construction was not completed, and it was considerably high fire risks compared to the freezing warehouse building completed due to such construction work, and it was reasonable to view that Gap was sufficiently aware of or was not aware of such circumstances at least due to significant negligence when concluding the insurance contract, in light of the degree and importance of risks, it was reasonable to view that the aforementioned circumstances were to be notified when entering into the insurance contract.

1. As to the ground of appeal No. 1 by the Plaintiff (Counterclaim Defendant, hereinafter “Plaintiff”)

A. According to the reasoning of the judgment below, the court below, based on the selected evidence, found the facts as stated in its reasoning. The fact that the remainder of the first floor freezing facility works, etc. was in progress at the time of the conclusion of the insurance contract of this case was an important matter subject to the Defendant (Counterclaim Plaintiff; hereinafter “Defendant”)’s duty of disclosure. However, at the time of concluding the insurance contract on the freezing warehouse building located in Macheon-si, Macheon-si, 2005, prior to the conclusion of the insurance contract of this case between the Plaintiff and the Plaintiff, the Defendant concluded a comprehensive business insurance contract on the premise that the building was completed, even though the Plaintiff’s employee did not know that the use of the above building was in progress through the on-site inspection and did not charge various facilities through the on-site inspection, it would be difficult to find that the Defendant did not inform the Plaintiff of whether the remaining building was in progress since Nonparty 1’s employee Nonparty 2, upon entering into the insurance contract of this case, but did not know about the on-site inspection of the construction of the said building.

B. However, the above determination by the court below is difficult to accept for the following reasons.

In order to establish a violation of the duty of disclosure in an insurance contract, the duty of disclosure must be intentionally or by gross negligence, and the gross negligence here refers to the fact that the duty of disclosure was aware of the fact that it should be notified, but it is not known that it is an important fact that the decision of importance of the fact is erroneous or that it is an important fact that should be notified due to a significant negligence (see Supreme Court Decision 96Da27971 delivered on December 23, 196, etc.).

First, according to the court below's findings, construction of the freezing warehouse building of this case, notwithstanding the formal approval for use at the time of the conclusion of the insurance contract of this case, has not yet been completed for two months or more since it was not yet completed, and the remaining construction is an important matter to be notified to the Plaintiff, which is the insurer, as the circumstance that the risk of fire occurrence increases substantially, and the continuation of the remaining construction and its work, which are the risk factors of fire occurrence, are the owner of the freezing warehouse building of this case, and as long as the purpose of the insurance contract of this case was to guarantee the risk of fire, it cannot be said that the above circumstances are objectively clear the meaning and importance of the conclusion of the insurance contract of this case.

The lower court cited that it is difficult to recognize that the Defendant committed intentional or gross negligence as to the breach of the duty of disclosure, such as the fact that the Plaintiff and the Defendant entered into an insurance contract for the freezing building located in Macheon-si, Macheon-si prior to the conclusion of the instant insurance contract, and that the Defendant was asked from the Plaintiff’s employees about the completion of construction, or was informed of the duty of disclosure, and the Plaintiff did not conduct on-site inspections.

However, according to the facts and records acknowledged by the court below, it can be found that the freezing building located in the above lag was already used as a de facto freezing warehouse at the time of entering into an insurance contract, and that it was limited to the construction work for installing a new freezing warehouse and fire-fighting equipment at the time of the construction of the first floor. Since there is a serious difference between the remaining construction work carried out in the freezing warehouse of this case in terms of importance related to fire insurance or the need for notification accordingly, and it is also necessary that the plaintiff did not inform the defendant of the notification by making on-site investigation or asking questions as to the completion of construction of the construction of the freezing building of this case. Since it is necessary for the defendant to raise funds by promptly providing the freezing warehouse of this case as a security, it is necessary to obtain an unfair approval for use based on a false construction supervision report before the new construction was completed, and this is the result of the appraisal report, general building ledger, and appraisal report presented to the plaintiff, without considering these circumstances, it cannot be viewed that the plaintiff did not have gross negligence on account of the above circumstances.

Ultimately, according to the aforementioned legal principles and facts, the Defendant had to continue the remaining construction due to the lack of the main construction work, such as freezing equipment, despite the formal approval for use, and was exposed to an increased fire risk compared to the freezing warehouse building completed due to such construction work. In light of the degree and importance of the risk, it is reasonable to deem that the Defendant was sufficiently aware of, or was not aware of, such circumstance at least due to significant negligence when concluding the instant insurance contract, in light of the degree and importance of the risk.

Nevertheless, the lower court, based on its stated reasoning, determined that there was no intentional or gross negligence on the part of the Defendant regarding the breach of duty of disclosure in the course of concluding the instant insurance contract. In so doing, the lower court erred by misapprehending the legal doctrine on the breach of duty of disclosure, thereby affecting the conclusion of the judgment. The ground of appeal

2. As to the grounds of appeal by the Defendant and the Intervenor succeeding to the Defendant (Counterclaim Plaintiff; hereinafter “Defendant succeeding Intervenor”).

As seen earlier, as long as the Plaintiff’s argument in the grounds of appeal is justified, the Defendant’s counterclaim should be rejected. As such, each of the grounds of appeal by the Defendant and the Defendant’s succeeding intervenor premised on the premise that the Defendant’s counterclaim should be accepted on a different premise cannot be accepted without further review.

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal by the Plaintiff, the part of the judgment below against the Plaintiff as to the principal lawsuit and the counterclaim shall be reversed, and this part of the case shall be remanded to the court below for a new trial and determination. Each appeal by the Defendant and the Intervenor succeeding to the Defendant shall be dismissed in entirety. It is so decided as per Disposition by the assent of all participating Justices

Justices Kim Shin (Presiding Justice)