[2] Whether a crime of fraud is established in a case where a person suffering from a specific disease concludes an insurance contract with an insurance company that knew of the fact without notifying the insurance company of the obligation to notify the specific disease under the terms and conditions stipulated by the insurance company, and claims the insurance money for the reasons of the outbreak of the disease (affirmative)

The deception as a requirement for fraud refers to any affirmative or passive act that has a good faith and sincerity to observe each other in a property transaction. The deception by omission refers to a passive act that a person subject to legal duty of disclosure does not know that the other party has been involved in a certain fact (see, e.g., Supreme Court Decision 2005Do8645, Feb. 23, 2006). If a person suffering from a specific disease concludes an insurance contract with an insurance company that knows that the obligation to notify the disease has been stipulated in the terms and conditions of the contract and claims the insurance money for the cause of the occurrence of the disease without notifying the insurance company of the fact, barring any special circumstances, the crime of deception or deception in fraud may be recognized unless the insurance company has been negligent in not knowing the fact, or because the insurance company may cancel the insurance contract due to a breach of duty of disclosure.

Comprehensively considering the evidence, the court below found that the defendant was found to have detected tuberculosis germs on December 19, 200 (name omitted) as a result of a urgical examination conducted by the National Assembly members, and that on January 26, 2004, the defendant issued a written request for medical treatment under the name of kidne tuberculosis and promotion of the left-hand side, so that the defendant could transfer the insurance proceeds to a three-year school university hub hospital. On the same day, the defendant was provided with medical treatment at the above hospital and stated that he was able to develop tuberculosis and kidney, and that the defendant was found to have received non-functional opinions presumed to be the left-hand tuberculosis as a result of the examination conducted by the court below on February 19, 2004. According to the above legal principles and the judgment of the court below, the defendant was found to have been found to have not been guilty on the ground that he was found to have been subject to examination within 7 months after signing the insurance contract of this case including tuberculosis at the above 20.

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Hwang-sik (Presiding Justice)