209dan21436 (Counterclaim Insurance Money)

Busan District Court Decision 200

Attorney Park Jae-sung, Counsel for the plaintiff-appellant

Attorney Kim Byung-jin, Counsel for the defendant-appellant

2. The Plaintiff (Counterclaim Defendant) pays to the Defendant (Counterclaim Plaintiff) 29,80,000 won with interest of 6% per annum from February 25, 2009 to June 26, 2009, and 20% per annum from the next day to the full payment date.

3. The costs of lawsuit shall be borne by the plaintiff (Counterclaim defendant) by aggregating the principal lawsuit and counterclaim.

4. Paragraph 2 can be provisionally executed.

Counterclaim: It is set forth in paragraph (2) above as the primary and preliminary.

가. 피고는 2006.3.24. 주식회사 ●●이라는 상호로 보험대리점을 운영하는 D1을 통하여 원고와 사이에 별지(생략) 목록 기재 '♥♥'이라는 보험계약(이하 이 사건 보험계약이라 한다)을 체결하였다.

B. According to the instant insurance contract, only once when the insured takes cancer, guarantee the cost of cancer treatment, KRW 20 million per cancer surgery, KRW 3 million per cancer surgery, KRW 30,000 per cancer hospitalization cost, KRW 30,000 per time when hospitalized for at least four days (per day exceeding three days and KRW 120 per day), and KRW 10,00 (per day exceeding three days and KRW 120 per day and per 120 days) when hospitalized for at least four days at the hospitalization cost.

C. Under the instant insurance contract, D2 (the husband of the Defendant), the insured under the instant insurance contract, was conducted on August 10, 2007, and was hospitalized for 20 days in the XX hospital, and was hospitalized for liver chemical chronological marization for 3 occasions.

D. On June 25, 2008, the Defendant claimed insurance money against the Plaintiff, but the Plaintiff rejected the instant insurance contract on the grounds that the Defendant’s delinquency in payment of insurance premium was invalidated.

[Reasons for Recognition: Evidence No. 2-1, 2, 6, 7, Evidence No. 2 and 3, the purport of the whole pleadings]

2. Determination

The principal lawsuit and counterclaim shall be judged together.

A. The parties' assertion

(1) On February 28, 2007, the Plaintiff asserts that, as the principal lawsuit, the Defendant, after paying the premium on January 28, 2007, failed to pay the premium for more than 3 months until the occurrence of the above insurance accident, the instant insurance contract became null and void, the Plaintiff’s claim to confirm that there was no obligation to pay the insurance money related to the instant insurance contract against the Defendant.

(2) The defendant, as a counterclaim, has not been terminated (effective) due to the lack of the highest procedure for the payment of insurance premiums against the defendant on the part of the plaintiff, and therefore, the insurance contract of this case was not terminated (effective), the plaintiff is obligated to pay insurance money of KRW 29.8 million ( KRW 20 million in cancer treatment expenses + KRW 3 million in cancer operation expenses + KRW 9 million in hospitalization expenses + KRW 8 million in hospitalization expenses ( KRW 40,000 in KRW x 20 days in advance) to the defendant. Preliminaryly, the plaintiff's insurance contract of this case was invalidated by the wind that D1 operating the plaintiff's insurance agency received insurance premiums from the defendant and embezzled it. Thus, the plaintiff, the employer, is liable to compensate for the above insurance amount equivalent to the insurance amount, which is the damage suffered by the defendant due to D1's tort.

(b) Fact of recognition;

(1) Since the first insurance premium was paid by automatic transfer from the account to the account, the Defendant delayed payment of the monthly insurance premium on April 30, 2006, such as payment of the insurance premium in May 30, 2006, and did not pay the insurance premium after the payment of the insurance premium on January 28, 2007. (2) The Defendant paid the insurance premium on April 2, 2007 to D1 of the same year as of March 2, 2007 at the end of the week, and D1 loaned the said money at the request of D3, a workplace partner, without paying it to the Plaintiff company.

(3) Around April 2, 2007, D1 received a request from the Defendant to pay a total of 11 insurance premium, including the above insurance contracts, and embezzled it by arbitrarily lending KRW 530,720 to D3, which was remitted. It was prosecuted for criminal facts, such as "......... the court issued a summary order under approximately approximately 2009 high-level3586 of this court, and the criminal trial is in progress as of 2009 high-level2551.

(4) Around April 2007, D1 acknowledged that the instant insurance contract was invalidated because the Defendant’s insurance premium on February 2007 was not paid to the Plaintiff Company, and agreed on the restoration of the insurance contract immediately with the Defendant, by notifying the Defendant thereof.

(5) D1 demanded that the Defendant pay the unpaid premiums and arrears required therefor even though the Defendant agreed to restore the instant insurance contract.

(6) On the other hand, the plaintiff or D1 concluded that the insurance contract of this case was invalidated due to the unpaid premiums after February 2, 2007 of the defendant, and there was no peremptory notice to the defendant that he would pay it because the premium of this case was unpaid on February 2, 2007 through July 7, 2007.

(7) On May 12, 2006, the Plaintiff appears to have dispatched a notice of unpaid insurance premium payment to the Defendant by each ordinary mail on July 12, 2006, June 14, 2006, July 12, 200, and August 22, 200 of the same year, but it is not clear whether each of them reached.

(8) If the insurance contract is invalidated, the unpaid insurance premium and late payment charge must be paid, and the approval of the plaintiff must be obtained.

[Reasons for Recognition: Evidence No. 7-1, 2, Evidence No. 5, Evidence No. 6-1, 3, 4, Evidence No. 7, Witness D1, and the purport of the whole pleadings]

C. Determination

The insurer may terminate the insurance contract if the insurance premium is not paid at the time when the contract was concluded with a reasonable period of time (see Supreme Court Decision 2002Da64872, Feb. 11, 2003). On the other hand, such a special agreement between the parties does not change the disadvantage of the policyholder, the insured, or the beneficiary (see Articles 663 and 650 of the Commercial Act).

The following circumstances revealed in the above facts, i.e., D1 operating an insurance agency with the authority to receive premiums, etc., embezzled without paying the premium from the defendant on February 2, 2007 under the insurance contract of this case, and discussed the restoration unilaterally to the remaining defendant who concluded that the insurance contract of this case was invalidated without going through lawful procedures for the payment of unpaid premiums, and thus, the defendant misleads the defendant that the insurance contract of this case was invalidated; the plaintiff sent a notice of unpaid premiums by ordinary mail to the defendant on May 12, 2006; the plaintiff sent the notice of unpaid premiums to the defendant on August 22, 2008; however, there is no evidence to acknowledge the arrival of the premium amount (the fact that the item was sent by ordinary mail unlike the content certified mail or registered mail cannot be presumed to have arrived within the extended period, and the fact that the mail reached the effect of delivery by evidence on the part of the plaintiff who asserted that the insurance contract of this case was invalidated, etc. (see, e.g., Supreme Court Decision 2002Da26526, etc.).

Therefore, the plaintiff is obligated to pay to the defendant the insurance money of KRW 29.8 million ( KRW 20 million + KRW 3 million + KRW 9 million + KRW 800,000 ( KRW 40,000 x 3 times) + hospitalization expenses of KRW 800,00 ( KRW 40,000 x 20 days)) and to pay damages for delay at each rate of 20% per annum under the Commercial Act from February 25, 2009 to June 26, 2009, which is obvious as the date of the delivery of the counterclaim, as requested by the defendant.

3. Conclusion

If so, the plaintiff's claim of the principal lawsuit is dismissed due to the lack of reason, and the defendant's claim of the counterclaim is justified, and it is so decided as per Disposition.