[2] The case holding that it constitutes a violation of the duty of disclosure, which is the ground for termination of the insurance contract under the terms and conditions of the insurance contract, that the policyholder notifies the insured person who does not have any operational interest or control over the insured vehicle for the purpose of collecting the insurance premium

[2] The case holding that at the time of entering into an automobile insurance contract, a policyholder's notification of a person who does not have any operational interest or control over the insured vehicle for the purpose of collecting the insurance premium as an insured insured person constitutes "where he fails to inform or falsely inform him of the fact intentionally or by gross negligence at the time of entering into the insurance contract" as the grounds for termination of the insurance contract

2. The costs of appeal are assessed against the Defendants.

(1) It is confirmed that the Plaintiff’s obligation to pay insurance money to the Defendants based on an insurance contract does not exist in relation to the accident described in the attached list.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

A. On March 29, 2006, Defendant 2 entered into an automobile insurance contract (hereinafter “instant insurance contract”) with the Plaintiff as the insured of Defendant 1, who is the type of punishment on the instant vehicle 75 M&C (Omission) in Busan (hereinafter “instant vehicle”) with the Plaintiff on March 29, 2006.

B. On April 2001, Defendant 2 purchased the instant vehicle and registered it under the name of the principal, and concluded an automobile insurance contract with Samsung Fire and Marine Insurance Co., Ltd. as the insured, but several accidents occurred thereafter, Defendant 2 concluded the instant insurance contract between the Plaintiff and the Plaintiff.

As above, Defendant 2 entered into the instant insurance contract with Defendant 1 as the insured, but continued to register the instant vehicle as its own name because it did not complete the ownership transfer registration in Defendant 1’s future on the instant vehicle.

C. Even after the conclusion of the instant insurance contract, Defendant 2 only driven the instant vehicle, and Defendant 1 did not use the said vehicle entirely.

D. Defendant 2 driven the instant vehicle around 15:30 on November 13, 2006, as indicated in the attached list (2), and driven the instant vehicle on the front side of the chemical name and welfare center located in the Busan Northern-dong, which did not properly verify whether or not the said vehicle entered the intersection, caused an accident that caused Nonparty 1’s bicycle entering the left side from the right side of the said vehicle to die (hereinafter “instant accident”).

E. Defendant 2 filed a claim against the Plaintiff for the payment of the insurance money due to the instant accident under the instant insurance contract, but around January 4, 2007, notified Defendant 2 that the Plaintiff could not cancel the instant insurance contract and pay the insurance money on the ground that it violated the duty of disclosure.

F. For the instant vehicle as the insured, annual insurance premium of KRW 752,370 for one year of the instant insurance contract with Defendant 1, or insurance premium of KRW 1,625,950 for Defendant 2 as the insured.

G. Important matters of the instant insurance terms are as follows.

(1) Obligation to inform prior to the contract

(A) The policyholder will inform the insurance company of any material fact in its written questions or written subscription for insurance.

(b) If the policyholder fails to inform or falsely inform the policyholder of the fact intentionally or by gross negligence at the time of entering into the insurance contract, the insurance company may terminate the insurance contract by giving written notice at the address of the policyholder entered in the insurance policy.

(C) When the policyholder has terminated the insurance contract due to the failure of the insurer to inform the policyholder of the entire contract before the termination, the policyholder shall not compensate for any accidents arising before the termination, and when he has already paid the insurance money, shall return it to the insurance company

(2) Details of compensation liability

An insurance company shall compensate for the loss sustained by the insured by taking legal liability for the loss of an insured motor vehicle caused by an accident that occurred while the insured owns, uses, or manages the insured motor vehicle as stated in the insurance policy, or by a loss of, damage to, or damaging another property.

(3) Scope of the insured

The scope of the insured shall be as follows:

(A) the insured described in the insurance policy (hereinafter “insured”)

(B) A relative who, like the named insured, lives or lives together, uses or manages the insured motor vehicle;

(c) a person who uses or manages insured motor vehicles with the consent of the insured;

(d) A person who has obtained the status equivalent to the employer of the named insured under the contract or the insured, provided that the named insured is the time when the named insured is used for the employer’s business.

(e)the person who is operating the insured motor vehicle for more than one insured;

[Reasons for Recognition] Unsatisfy, each entry of Gap1 or Gap6 (including each number), and the purport of the whole pleadings.

2. The parties' assertion and judgment

A. The parties' assertion

The Plaintiff: (a) notified Defendant 2 to Defendant 1 who did not have any insurable interest under the instant insurance contract while entering into the instant insurance contract with the Plaintiff; and (b) concluded the instant insurance contract with the above Defendant as the named insured; (c) Defendant 1, the named insured, cannot have any insurable interest because it did not have any operational control over the insured vehicle or operational interest; and (d) Defendant 2, who concluded the instant insurance contract with Defendant 1 as the named insured, violated the duty of disclosure; and (b) Defendant 2 notified Defendant 2 of the termination of the instant insurance contract on the ground that the Plaintiff violated the duty of disclosure, the Plaintiff did not have any obligation to pay the Plaintiff’s insurance money to the Defendants based on the instant insurance contract.

이에 대하여 피고들은, ① 피고 2가 이 사건 차량을 더 많이 운전하기는 하나 피고 1 역시 위 차량을 실제 운행을 하였으므로 피보험이익이 없다고 볼 수 없고, ② 피고 2는 이 사건 보험계약을 체결하면서 차량 소유자가 피고 2인 사실을 원고의 보험모집인인 소외 2에게 이야기하였을 뿐 아니라, 오히려 소외 2가 피고 1을 피보험자로 하도록 권유하였으므로 고지의무에 위반했다고 볼 수도 없으며, ③ 피고 2가 2005. 9. 6. 교통사고를 일으켜 원고에 보험사고 신고를 접수한 적이 있는데, 그 때에 피고 2가 피보험자와 형제자매관계라고 분명이 기재해 놨는데도 원고가 아무런 문제를 제기하지 아니하다가 2007. 1. 4.경에서야 해지통보를 보내왔는바, 이는 상법 제651조 의 계약해지 기간을 도과한 해지로서 무효라는 취지로 다툰다.

B. Judgment on the Plaintiff’s assertion

(1) Determination as to the assertion that there was no insurable interest

(A) In light of the above, the registered insured under the general terms and conditions of automobile insurance stipulating the person who uses and manages an automobile with the consent of the registered insured as the insured refers to a person who has the authority to permit the use or management of the insured automobile, i.e., the insured who enjoys the operation control and operation benefits. Thus, a person who merely enters into an insurance contract without any authority as to the use and management of the insured automobile as the insured is not an insured person (see Supreme Court Decision 96Da52120, Jun. 24, 1997, etc.).

Therefore, as seen earlier, Defendant 2 and Defendant 2 continued to purchase the instant vehicle, which is an insured automobile, and continuously used the said vehicle, and Defendant 1 did not use it at all, and Defendant 2’s insurance premium for one year when Defendant 2 wishes to be the insured as the insured of Defendant 1. In light of this, although the registered insured of the instant insurance contract is Defendant 1, it is merely that Defendant 2 notified Defendant 1, who did not have any insurable interest, as it did not actually operate the instant vehicle for the purpose of reducing the insurance premium at the time of the conclusion of the instant insurance contract, and it cannot be deemed that Defendant 1 did not have any operating control or operating interest on the instant vehicle, and thus, Defendant 2, who received Defendant 1’s consent from Defendant 1, constitutes the insured in form, but Defendant 2 cannot be deemed as the registered insured, as it did not have any personal interest on the insured’s life manager or operating interest on the pertinent insurance contract, even if the insured’s consent was based on the premise that the insured is an insured person’s life manager or operating interest.

(B) The Defendants asserted to the effect that Defendant 1 also operates the instant vehicle and thus constitutes a named insured person. However, Defendant 2’s personal examination result at the court of the first instance, which seems consistent with this, did not believe, and there is no other evidence to acknowledge this, and this part of the Defendant’s assertion is without merit.

(2) Determination on the ground of termination due to the breach of duty of disclosure

(A) "Important matters" in which the policyholder or the insured is liable to notify the insurer at the time of the insurance contract means the standard for the insurer to determine whether to conclude the insurance contract or the content of the insurance contract, such as the addition of the premium or special exemption clause, by measuring the occurrence of the insured events and the estimated rate of liability arising therefrom, and where the insurer objectively knows the fact, the insurer would not conclude the contract if it becomes aware of the fact (see, e.g., Supreme Court Decision 2001Da49623, Nov. 13, 2003). The insured matters are matters affecting the insurer’s determination of the insurance premium level by measuring the risk rate of the accident in the conclusion of the insurance contract in relation to the occurrence of traffic accidents, which is subject to the duty of disclosure.

Therefore, Defendant 2’s notification to Defendant 1, who was not at all engaged in operating interest or operating control over the instant vehicle for the purpose of collecting insurance premiums, constitutes “where he fails to notify or falsely notifies the facts known due to intention or gross negligence when entering into the instant insurance contract,” as stipulated in the terms and conditions of the instant insurance contract, and as long as the Plaintiff terminated the instant insurance contract to Defendant 2, who is the policyholder, on the ground of the violation of the duty of disclosure as above, the said insurance contract was lawfully terminated, and thus, the Plaintiff is not liable to pay the insurance money based on the instant insurance contract to the Defendants in relation to the instant accident.

(B) The Defendants asserted that they knew the above facts to the non-party 2. However, even if the facts alleged by the defendants are acknowledged, the insurance solicitor is a person acting as an intermediary for or soliciting the conclusion of the insurance contract and acting as an intermediary for the insurer to conclude the insurance contract by delivering the policyholder's intent to subscribe, and there is no authority to act on behalf of the insurer unless there is any special circumstance. Thus, unless there is any assertion or proof on the fact that the non-party 2 has a special authority to act on behalf of the plaintiff, it cannot be deemed that the obligation to notify the plaintiff to the non-party 2 was fulfilled.

C. Determination as to the Defendants’ assertion that the termination period for the termination of the contract is expired and invalid

The Defendants asserted that, around September 6, 2005, Defendant 2, Defendant 1, a punishment of Defendant 1, did not raise any question even with the knowledge that the accident occurred while driving the instant vehicle, sending the notice of termination at around January 4, 2007, which was null and void. However, it cannot be readily concluded that only the fact that the sentence of the registered insured was known that the accident caused a traffic accident, and that the insurance contract of this case was concluded around March 29, 2006 and the traffic accident occurred prior to the insurance period under the insurance contract of this case, and therefore, the above traffic accident was not related to the validity of the termination of the insurance contract of this case, and therefore, the Defendants’ assertion is without merit.

3. Conclusion

Therefore, in relation to the accident of this case, there is no obligation to pay insurance money to the Defendants based on the insurance contract of this case, and as long as the Defendants are dissatisfied with the existence of the claim against the Plaintiff, the plaintiff's claim of this case shall be accepted on the grounds of its reasoning, and the judgment of the court of first instance is just in conclusion, and the appeal by the Defendants is dismissed in its entirety as it is so decided as per Disposition.

Judges High Regulations (Presiding Judge) (Presiding Judge)