208Gaz. 147 (Counterclaim Insurance Money) Insurance proceeds

Law Firm Doz.

Law Firm Doz.

Attorney Lee In-bok

(57 - 1)

Defendants’ Address

[Defendant-Appellant]

The Defendants’ sub-agent

A. It is confirmed that there is no insurance payment obligation of the Plaintiff (Counterclaim Defendant) against the Defendant B based on the insurance contract indicated in the attached list between the Plaintiff (Counterclaim Defendant) and the Defendant B.

B. It is confirmed that the insurance payment obligation of the Plaintiff (Counterclaim Defendant) against the Defendant A (Counterclaim Defendant) based on the insurance contract indicated in the attached Table No. 1 between the Plaintiff (Counterclaim Defendant) and the Defendant (Counterclaim Plaintiff) does not exceed the following 2 amount.

2. The plaintiff (Counterclaim defendant) shall pay to the defendant A (20,000,000 won to the counterclaim and 6% per annum from June 8, 2007 to September 18, 2009, and 20% per annum from the next day to the day of full payment.

3. The remainder of the main claim against Defendant A (Counterclaim Defendant) and the remainder of the counterclaim by Defendant A (Counterclaim Plaintiff) are all dismissed.

4. Of the costs of lawsuit, the part arising between the Plaintiff (Counterclaim Defendant) and the Defendant B is assessed against the Plaintiff (Counterclaim Plaintiff) and the Plaintiff (Counterclaim Defendant) respectively. Of the part arising between the Plaintiff (Counterclaim Defendant) and the Defendant A (Counterclaim Plaintiff), 1/10 of the remainder is assessed against the Plaintiff (Counterclaim Defendant).

5. Paragraph 2 can be provisionally executed.

Attached Form B to the Plaintiff’s Defendants regarding a fire accident that occurred on April 1, 2007 between Defendant B and Defendant B

It is confirmed that there is no insurance money payment obligation under an insurance contract entered in the list.

Counterclaim: The Plaintiff’s counterclaim from April 1, 2007 to Defendant A, as well as from April 1, 2007.

Until the delivery date of the book, 6% per annum and 20% per annum from the next day to the day of complete payment.

payment of the same amount shall be made.

The following facts do not conflict between the parties, or evidence A 1 to 7, and evidence B 6 (A 2.6.

7 Nos. 7 and 6 may be recognized by integrating the descriptions of the evidence and the purport of the entire pleadings.

A. The Defendants entered into an insurance contract (hereinafter “instant insurance contract”) with the Plaintiff Company on December 29, 2006, as shown in the separate sheet, while Defendant B had been engaged in the manufacturing business under Defendant A’s business registration from around 1997, and Defendant A entered into an insurance contract (hereinafter “instant insurance contract”).

B. On April 18, 2007: around 18, Defendant B’s Daegu District of Management (hereinafter “the factory of this case”) caused an unexpected fire, and the building and the interior of the factory were destroyed by a fire that caused the fire that was caused inside the factory (hereinafter “the fire of this case”).

C. Meanwhile, around May 15, 2005, the Defendants leased the instant factory building owned by C from May 15, 2005 to May 15, 2007, setting the lease deposit amount of KRW 7 million, monthly rent of KRW 1 million.

D. On May 18, 2007, Defendant A claimed for the payment of insurance proceeds of KRW 430 million in total amount equivalent to KRW 260,000,000,000 for installed machinery, KRW 260,000,000 for installed machinery, KRW 20,000,000 for inventory assets, and KRW 150,000,000 for damages caused by the instant fire accident under the instant insurance contract to the Plaintiff Company.

E. The main contents of the insurance terms and conditions pertaining to the instant case are as follows:

Article 6 (Compensation Damages)

(1) A company shall compensate for the following losses suffered by fire on any article insured in accordance with the terms and conditions of this Agreement:

1. Direct damage caused by a fire;

2. Fire-fighting damage caused by a fire.

3. Evacuation damage due to fire (damage not compensated) Company shall not be compensated for as follows:

1. Damage caused by intention or gross negligence of the contractor, the insured, or his legal representative;

2. A loss caused intentionally by relatives or employees living in the same household as the insured in order to have the insured receive insurance proceeds;

Article 12 (Contract for Third Party)

(2) Where an insured event occurs in a contract for another person, if the contractor compensates the other person for the loss incurred by the occurrence of the insured events, the contractor may claim for the payment of the insurance proceeds to the company to the extent that it does not prejudice the other person'

Article 19 (Payment of Insurance Proceeds)

(1) Upon receipt of the following documents, the company shall issue a certificate of receipt, and shall pay insurance proceeds within 20 days from the date of receipt of the documents:

1. A claim for insurance proceeds (in the form of a company);

2. Insurance policies.

3. Other evidential materials requested by the company.

(4) Where a company fails to pay insurance money within the due date stipulated under the provisions of paragraph (1), it shall pay the amount calculated by adding up the amount calculated by the interest rate on time deposits publicly notified by the Korea Insurance Development Institute for the period from the following day to the due date of payment: Provided, That if the payment is delayed due to a contractor or an insured

Article 21 (Loss of Right to Claim Insurance)

The insured loses the right to claim insurance for damages in the following cases:

1. Where the contractor or the insured intentionally enters any document concerning the notice of damage or the claim for insurance proceeds into the false document, or forges or alters the document or evidence;

2. The party's assertion in the principal lawsuit and counterclaim

The plaintiff company filed a claim against the defendants of the plaintiff company for non-existence of the insurance claim as to the plaintiff company's main claim as to the following 4.4. As to the plaintiff company's counterclaim, the defendant Eul filed a claim for payment of the total amount of KRW 50 million based on the insurance contract of this case, claiming that the plaintiff company suffered damages equivalent to the total amount of KRW 280,000,000,000,000 for the installed machine due to the fire of this case, the amount of KRW 250,000,000,000,000,000,000,000 won, and KRW 1550,000,000,000,000 for the part of the building due to the fire of this case, which

3. Whether the defendant B is liable to pay insurance money

While Defendant B, a wife of Defendant A, entered into the instant insurance contract in the name of Defendant A around December 29, 2006, the fact that the instant insurance contract was concluded in the name of Defendant A around December 29, 2006. However, it is insufficient to deem the Defendant B as the insured of the instant insurance contract, and there is no other evidence to acknowledge it. However, according to the overall purport of evidence and arguments mentioned above, the insured of the instant insurance contract is recognized as the Defendant A, and therefore, there is no obligation to pay the Plaintiff’s insurance money to Defendant B. Thus, there is no obligation to pay

4. Whether the defendant A is liable to pay insurance money

(a) Occurrence of liability to pay insurance proceeds;

According to the above facts, each of the insurance items of the instant insurance contracts was destroyed and damaged by fire of this case, and thus, Defendant A suffered damage, barring any special circumstance, the Plaintiff Company is obligated to pay the insurance money calculated in accordance with the terms and conditions of the instant insurance contract to Defendant A, the insured.

B. Determination of the Plaintiff Company’s assertion

1) Claim of immunity due to intentional fire prevention

The plaintiff company asserts that the plaintiff company is exempted from the obligation to pay insurance money in accordance with the Commercial Act and the insurance contract of this case, since the defendants intentionally committed fire to the factory of this case for the purpose of claiming insurance money under the insurance contract of this case.

In light of the records of evidence No. 7, No. 7, No. 4 of the insurance contract of this case, the insurer, the insured or his legal representative's loss caused by the intentional or gross negligence on 1. 2. 2. 2. 2., the relative or the employee who is in the same household with the insured in order to have the insured receive insurance money, and the loss caused intentionally by this employee, can be acknowledged that the company did not compensate for the loss. However, the policyholder's intentional or gross negligence, which is the above exemption from liability, bears the burden of proving the exemption. However, according to each of the records of evidence No. 3, No. 6-8 (Request for Expert Opinion of National Research and Investigation Agency) of the evidence No. 6-8 (Request for Expert Opinion of National Research and Investigation Agency) of this case, around 18: 18, 207, the plaintiff company's assertion that the fire of this case occurred in the factory of this case, as well as the 8 straight line No. 8 upper class, etc. installed in the above factory of this case, cannot be found otherwise.

The Plaintiff Company concluded the instant insurance contract by actively deceiving the Plaintiff by determining the purchase price of the installed machinery, public equipment, inventory assets, etc., which the Defendant merely purchased approximately KRW 100 million, as KRW 450 million, etc.

3) The plaintiff company's assertion that the claim for loss of insurance claim due to false claims should be asserted

While Defendant A’s claim for insurance proceeds against the Plaintiff Company, the actual amount of damages of 98 points for installation, including 14 points for Lepia, out of the subject matter of insurance (hereinafter “this case’s installation machinery”) is equivalent to 60,670,000 won, and the actual amount of damages of the inventory assets, including 15,386,150 won, such as launddgs of the face value, is equivalent to 15,386,150 won, Defendant A’s claim for insurance proceeds. However, the actual amount of damages of the inventory assets, such as a false confirmation of purchase/sale, a false confirmation of supply/sale, estimate of supply after the purchase/repair, a sales contract, a statement of machinery and apparatus, a sales contract, a written estimate, a movable inventory, a statement of movable property damage, a cost statement, etc., was written intentionally differently from the fact in accordance with the terms and conditions of the instant insurance contract.

B. Facts of recognition and determination

1) Facts of recognition

The following facts can be acknowledged by comprehensively taking account of the respective entries and arguments in Gap evidence 4, 7, and 10 (the evidence Nos. 7 through 10 included each number) and the whole purport of the argument. The insurance clause of the insurance contract of this case provides that Article 21 subparagraph 1 of the insurance contract of this case provides that the contractor or the insured intentionally enters matters different from the facts in the documents concerning the notification of damages or the claim for insurance money, or forges or alters the documents or evidence (hereinafter referred to as "the insurance clause of this case").

B) On May 18, 2007, Defendant B claimed against the Plaintiff Company for the payment of insurance proceeds of KRW 480,200,000 ( KRW 260,000,000 + KRW 62,000,000 + KRW 160,000 of inventory assets + KRW 160,000,000) on behalf of the Plaintiff Company regarding the fire of this case. The Defendant B made a claim for the payment of insurance proceeds of KRW 430,000 ( KRW 26,000,000,000 + KRW 2,000,000,000 + KRW 15,000,000,000,000,000) on behalf of the Plaintiff Company for each subject matter of insurance, as seen below, written confirmation of the purchase and sale contract of movable property, written confirmation of the purchase and sale of inventory assets, and written statement of the cost estimate, etc.

12. (Installation Machinery) there was no purchase of 12 units of 12 units of 's direct possession' from a person running the sales and repair business of 12 units (construction Machinery) and the total market price of the above machinery at the time of the instant fire was at KRW 48,00,000,000 for total of KRW 12,60,000,000, false purchase/sale confirmation (No. 54 of evidence No. 7), and supply estimate (No. 57 of evidence No. 57) after the second purchase was prepared and submitted to the effect that the above machinery was purchased at KRW 12,00,000.

Though the total market price of the above machinery at the time of the instant fire was 3 million won or more, the false statement of machinery and apparatus (No. 7 No. 50) to the effect that the total market price of the above machinery was 18 million won or more.

The Plaintiff asserted that the Plaintiff suffered damages equivalent to the same amount while preparing and submitting a false sales contract (Evidence No. 7-5), and a false sales contract (Evidence No. 7-5), and a confirmation of purchase/sale (Evidence No. 56 of Evidence No. 7) to the effect that the Plaintiff purchased the above machinery in total at KRW 70 million, although the total market price of the above machinery at the time of the instant fire was at KRW 6.5 million, the Plaintiff did not purchase the above machinery from the least vehicle operating the manufacturing business of textile parts (Installation No. 4) and the total market price of the above machinery at the time of the instant fire. In addition, the Plaintiff asserted that the Plaintiff incurred damages equivalent to the same amount while preparing and submitting a certificate of purchase/sale (Evidence No. 56 of evidence No. 7-5) and a certificate of confirmation No. 4 (Construction Machinery).

I argued to the effect that there was a loss equivalent to the same amount while preparing and submitting a false purchase/sale confirmation (No. 55 of Gap evidence 7).

2) At the time of the instant fire, the Plaintiff asserted that the Plaintiff incurred damages equivalent to the same amount while preparing and submitting the false specifications of machinery and apparatus (No. 7 No. 52 million won) to the effect that the total market price of the said machinery was 2,00,000 won at the time of the instant fire. (6) In addition, the Plaintiff did not purchase the said machinery with the trade name of 1st, 2nd, 1st, and 14th, 14th, and 14th, respectively, of the said machinery at the time of the instant fire, and that the Plaintiff purchased the said machinery in total at KRW 1,32,00,000,000, the total market price of the said machinery and equipment was 5th,000,000,000,0000 won, and 7th,000,000,000,000 won were 7th,000,000 won.

(8) At the time of the fire of this case, the original unit of the laversteg (7S), the original unit of the laversteg (105), the original unit of the laversteg (105), the laversteg of the lavers, the lavers of the lavers, the lavers of the lavers, the 105 lavers, the lavers of the lavers, the 105 lavers, the DTY150 / the 300 lavers of the 1680,000 won for the factory of this case, the original unit of the laversteg (78), the original unit of the laversteg (10S), and the original unit of the laversteg (10S), the original unit of the laversteg (100,750, 600, the 1305 lavers.

DTY150/ 300D 209,400 won, and 23,020,750 won, were alleged to have incurred damages equivalent to the same amount while preparing and submitting a false statement of inventory and loss of movable property (Evidence A7-51), and the details of movable property damage (Evidence A7-7-1).

Although the total market value of the post-collection site, etc., which existed in the instant factory at the time of the fire at the time of the instant fire, the following assertion was made to the effect that there was a sum of KRW 38,179,080 in the market value, etc. (Evidence No. 7-131), Article 132, and 133) of the false statement of movable property damage to the effect that there was damage equivalent to the same amount while preparing and submitting the following statement to the effect that there was a sum of KRW 38,179,00 in the market value.

(10)** The Kaba, etc., owned Kaba, etc., claimed that the total market value of the carba, etc., which existed in the instant factory at the time of the instant fire was 5,857,450 won, and that there was a carba group, etc., of the total market value of KRW 22,80,880,880, and KRW 880, and that there was a false movable property damage (No. 7 evidence 114), while preparing and submitting the manufacture cost invoice 116).

Although the market value of the character, etc. in the instant plant was 2,479,40 won at the time of the instant fire, it was argued that the Plaintiff suffered a loss equivalent to the same amount in preparing and submitting the false description of movable property damage (a certificate No. 7-105, A7-106), and the evidence No. 7-107) to the effect that the character, etc. in the instant plant had a total of KRW 70,196,034, etc.

C) In this case, this Court sentenced six months of imprisonment on August 28, 2009 for the reason that this Court notified Defendant B of the aforementioned false facts and attempted to obtain insurance money by submitting a false statement, etc.

2) The purport of the terms and conditions of the fire insurance contract of this case is to determine whether the insurer is liable for compensation under the insurance contract, to determine the amount of compensation, etc., and to determine the cause and situation of the insurance accident, the degree of damages, etc. However, since the data related thereto are most within the control area of the policyholder or the insured (hereinafter referred to as the "insured"), it is highly necessary to require the insured to provide accurate information on such information. In response to such request, where the insured claims excessive amount of insurance money in a fraudulent manner contrary to the principle of good faith by forging documents or manipulating evidence against it, it is necessary to have the insured lose its right to claim insurance money as a sanction (see Supreme Court Decision 2004Da2027, 20234, Nov. 23, 2006). However, it is reasonable to view the insurer exempted from liability if it violates the terms and conditions of the insurance contract of this case strictly by strictly interpreting the terms and conditions of the insurance contract of this case, considering the social utility of the victim and its economic function of the insurance contract of this case.

Therefore, in the event that the insured submits a document different from the actual fact or reports the value of the subject matter to a certain degree due to differences in opinion on the value of the subject matter of insurance due to difficulties in providing documentary evidence as to the actual amount of damages when claiming the insurance proceeds, the insurance claim is not lost according to the terms and conditions of the contract in this case, but

It is reasonable to interpret that insurance claims should be lost (Supreme Court Decision 2006Da2006 Decided December 27, 2007).

See Supreme Court Decision 29105.

B) The following circumstances revealed by the aforementioned legal principles and facts in the instant case, namely, ① Defendant A’s actual amount of damages to the installed machinery excluding the building and the machinery of this case 81,426,150 won 6,700,000 won + 3,000,000 won + 6,500,000 won + 2,00,000,000 won + 0,000,000 won + 2,40,000,000 won + 2,40,000 won + 80,000,000 won + 80,000,000 won + 00,000 won + 0,000,000 won + 10,000,000 won + 14,506,78,50,000 won + (25,00 won) through (7).

Since it is difficult to provide documentary evidence as to actual amount of damages, it cannot be deemed that specific contents are different from facts, or that the value of the subject matter of insurance is somewhat high due to differences in opinions on the value of the subject matter of insurance. Rather, it should be deemed that an excessive claim for insurance proceeds was filed in a fraudulent manner by actively creating false damages.

C) Therefore, Defendant A, the insured of the instant insurance contract, intentionally stated that it was different from the facts in the documents concerning the claim for insurance money. Thus, as stipulated in the terms and conditions of the instant insurance contract, Defendant A lost its right to claim insurance regarding the installation machinery and inventory assets of the instant case, and on the other hand, the fact that the instant public organization part concerning the amount of damages caused by the instant fire does not clearly dispute the Plaintiff Company. Therefore, the Plaintiff Company is obligated to pay Defendant A the amount of damages for the said air part within the insurance coverage amount, as well as damages for delay.

5. As to the claim for payment of KRW 100 million as to the portion of the factory building of this case

A. The nature of the instant insurance contract

The fact that Defendant A is the insured of the instant insurance contract. Under the instant insurance contract, the insurance company provides that the insured shall compensate for direct damage caused by fire, fire-fighting damage, escape damage, etc. as the damage caused by fire. The Defendants leased the instant factory building from the owner of the instant factory, as acknowledged earlier. According to the above facts, it is clear that the instant insurance contract has the nature of the non-life insurance as a fire insurance, which is a kind of non-life insurance. Unless otherwise stipulated, such fire insurance cannot be deemed as having the nature of the liability insurance to compensate for the damage inflicted upon the insured, who is the owner of the relevant object, unless otherwise stipulated. In this case, whether the insurance contract is for itself, whether it is intended for another person shall be determined by taking into account all the circumstances such as the content of the insurance contract, the terms of the insurance contract in which the parties are the content of the insurance contract, the process and process of concluding the insurance contract, the practice of the insurance company, etc. (see Supreme Court Decision 95Da14800, May 30, 1997).

In light of the fact that the building of this case was known to the effect that it does not belong to the owner of the policyholder at the time of conclusion of the insurance contract of this case, and the contents of the above terms and conditions, it is reasonable to view the part concerning the building of this case as the policyholder and the defendant A, the lessee, as the insurance contract for others.

B. Determination

On the other hand, if an insured event occurred in a contract for another person under Article 12 (2) of the insurance clause of this case, the fact that the policyholder is entitled to claim insurance money to the company to the extent that it does not infringe on the other person's right, if the policyholder compensates for the loss caused by the insured event. Thus, there is no assertion or proof that the defendant A, the policyholder of this case, compensates for the loss caused by the fire of this case to C, who is the owner of the building of this case. Thus, the defendant A's claim for the payment of insurance money against the part of the factory of this case is not accepted (see Supreme Court Decision 2006Da4330 delivered on January 12, 207).

The part concerning the building of this case in the insurance contract of this case is deemed as liability insurance for the defendant A itself. Even if insured interest is legally liable to the owner of the building of this case due to fire by the defendant A who is the insured, the insurer of this case cannot pay the whole or part of the insured amount to the insured before the third party is compensated for the damage caused by an accident attributable to the insured (Article 724(1) of the Commercial Act). Paragraph (2) of the same Article provides that the insurer may directly claim compensation to the insurer within the limit of the insured amount for the damage caused by an accident attributable to the insured by the third party (Article 94Da28093, Sept. 26, 1995). The defendant A compensates the owner of the building of this case for the damage caused by the fire of this case, or there is no assertion or proof that the obligation against the third party owner of the defendant A was finalized by the method prescribed by the Commercial Act or the insurance terms and conditions.

6. Conclusion

Therefore, there is no obligation to pay the insurance money under the insurance contract of this case against the defendant Eul of the plaintiff company, and the plaintiff company is obligated to pay damages for delay calculated at the rate of 6% per annum under the Commercial Act until September 18, 2009, which is the date when the plaintiff company rendered a substantial decision on the existence and scope of the obligation to pay the insurance money from May 18, 2007 to the date when the claim for the insurance money was received with respect to the insurance money of 20 million won, and from May 18, 2007 to the date when the claim for the insurance money was received, the plaintiff company is obligated to pay damages for delay calculated at the rate of 20% per annum under the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the next day to the date when the claim for the insurance money of this case was made (Article 19 of the insurance contract of this case). However, there is no obligation to pay damages for delay to the plaintiff company of this case from the date when the claim for the insurance money of this case was received).

Therefore, the plaintiff company's claim against the defendant B shall be accepted on the ground of its reasoning, and the plaintiff company's main claim against the defendant A and the counterclaim against the defendant A shall be accepted within the scope of the above recognition, and the remainder shall be dismissed as it is without merit. It is so decided as per Disposition.

Judges Mak-hee

Judge Choi Jong-Un