[2] The scope of application of Article 137 of the Civil Act, which provides for the legal principle of partial invalidation, and the standard for determining whether the partial invalidation affects the remaining parts in a case where a part of the legal act becomes null and void as it is in violation of the validity provision, which

[3] In a case where Gap and Eul insurance company entered into an insurance contract with Gap as the insured Eul's children who were 7 years of age Gap and the beneficiary Gap as the beneficiary Eul, and Byung as the case where Byung died due to a disaster, Eul paid the death insurance money and suffered disability, the case holding that the remaining part of the above insurance contract excluding the part under which Byung's accident death is subject to the payment of insurance money is valid

[2] Article 137 of the Civil Act is a voluntary provision and is applicable in an area governed by the principle of autonomy of a juristic act. Accordingly, in cases where part of a juristic act becomes null and void due to its violation of the validity clause, which is a mandatory law, determination of whether the partial invalidation affects the effectiveness and invalidity of the remaining parts, the whole of the juristic act, in principle, shall be null and void as prescribed in the main sentence of Article 137 of the Civil Act, if an individual law provides for the validity of a partial invalidation, and if there is no such provision, the entire invalidation of the juristic act shall be determined in accordance with the main sentence of Article 137 of the Civil Act. However, the proviso of the same Article stipulates that if it is deemed that a juristic act had not been null and void if the parties had known of such invalidation, if a part of the juristic act was known at the time of the juristic act, the parties’ intent refers to the intention of assumptive effect, and if a whole juristic act becomes null and void in light of the legislative purport of the relevant effective provision, it should be acknowledged even if there are no other special circumstances.

[3] In a case where Gap and Eul insurance company formed an insurance contract with Gap as the insured Eul's children who were 7 years of age Gap and the beneficiary Gap as the beneficiary Eul, and Byung died due to a disaster, Eul paid the death benefit and suffered disability due to the disaster, and Byung received a diagnosis of disability under the insurance contract due to traffic accident, the case affirming the judgment below that held the above insurance contract still valid as to the remaining part of the grounds for the payment of insurance benefit, on the ground that it is reasonable to view Gap and Eul company's insurance contract as invalid under Article 732 of the Commercial Act, even if Gap knew that the part of the insurance contract was subject to the payment of insurance benefit due to a disaster was invalid under Article 732 of the Commercial Act

A. Article 732 of the Commercial Act provides that an insurance contract which covers the death of a person under 15 years of age as an insured event is null and void. The foregoing provision provides that where a person under 15 years of age is an insured person, etc. who is under 15 years of age as an ordinary mental capacity, consent based on his/her free and mature will cannot be expected if the legal representative of a person under 15 years of age is able to consent on his/her behalf, and that is, there is a risk of sacrifice for the acquisition of insurance money. Thus, it is an effective provision to protect a person under 15 years of age from moral hazard, etc. due to abuse of such death insurance. Therefore, an insurance contract which covers the death of a person under 15 years of age as an insured event is null and void regardless

Meanwhile, Article 137 of the Civil Act is a voluntary provision and is applicable in the area where the principle of autonomy of a juristic act is controlled. Accordingly, in determining whether a part of a juristic act is null and void because it violates the validity clause, which is a mandatory law, if an individual law provides for the validity of partial invalidation, it shall be applied, and if there is no such provision, the whole of a juristic act shall be null and void in principle as prescribed in the main sentence of Article 137 of the Civil Act. However, the proviso of the same Article provides that if it is deemed that a juristic act would have been performed even if the parties had known of such invalidation if it had not been invalidated, it shall be deemed that the remaining part is still effective. In this case, the parties’ intent refers to the assumpt effect of a juristic act if the parties knew that a part of the juristic act is null and void at the time of the juristic act. If a juristic act becomes null and void in light of the legislative intent of the pertinent provision, it shall be deemed that the legal act would have been null and void, barring any special circumstances by the other parties.

B. First, the lower court acknowledged the following facts.

① On November 10, 200, between the Defendant and Nonparty 1, the insured Nonparty 1, the beneficiary of Nonparty 1, the Plaintiff, and the insured period from November 10, 200 to November 10, 2020, entered into an insurance contract without dividends (hereinafter “instant insurance contract”). At the time, Nonparty 1, the insured, was a child of 7 years of age who was born on May 3, 1993.

② The instant insurance contract provides that (i) if the insured dies due to a traffic accident, KRW 20 million shall be paid for a day-to-day, KRW 40 million for a day-to-day, KRW 10 million for a day-to-day, and KRW 20,000 for a day-to-day, and KRW 20,000 for a day-to-day, when the insured dies due to a disaster other than a traffic accident; (ii) if the insured becomes a disability of Grades 1 through 6 in the disability classification table due to a disaster, whether the traffic accident is a traffic accident, or a traffic accident other than a day-to-day, or further, if the grade of the disability is determined in one lump sum, KRW 50,00 per 30,000 for a day-to-day, and KRW 200,000 for a day-to-day, KRW 10,000 for a day-to-day, if the insured was hospitalized due to a traffic accident for at least four days.

③ On October 20, 2006, Nonparty 1 suffered bodily injury, such as brain, external cerebral cerebral cerebral cerebral cerebral cerebral cerebral cerebral cerebral cerebral cerebral cerebral cerebral cerebral cerebral Spon, and cerebral Sponal cerebral Spona, while driving on a road along a bicycle on October 18:30, 2006, when Nonparty 1 driven on the road (vehicle number omitted). Nonparty 1 received a diagnosis of disability after: (a) the instant accident fell under “when Nonparty 1 needs to obtain occasional nursing through leaving a serious obstacle to the heavy stal mar or mental health” as stipulated in the terms and conditions of the instant insurance contract; and (b) Nonparty 1 received a diagnosis of disability.

Furthermore, based on such factual basis, the lower court determined that the part concerning the payment of the traffic accident death insurance money and the general accident death insurance money in the instant insurance contract constitutes an insurance contract which covers the death of Nonparty 1, who is less than 15 years of age, and thus null and void as it violates Article 732 of the Commercial Act. However, the remainder insurance contract concerning the payment of income loss or emergency treatment expenses, excluding the traffic accident death insurance money and general accident death insurance money, is valid since it does not constitute an insurance contract which covers the death of a person under 15 years of age, and cited the Plaintiff’s claim

C. In light of the above facts and records, one of the major purposes of the instant insurance contract concluded between the Plaintiff and Nonparty 1, who is under 15 years of age, as the insured by the Plaintiff, is to properly treat, protect, and nurture Nonparty 1 by comparing in advance the burden of various medical expenses, care expenses, etc. to be incurred when Nonparty 1, his children were hospitalized for a certain period due to traffic disasters, etc., or when he became a certain obstacle as stipulated in the terms and conditions of the instant insurance contract, and the economic difficulties due to loss of future income. In addition, in light of the above legal principles, the Defendant concluded the instant insurance contract with the Plaintiff by understanding the above purpose with the Plaintiff, as well as understanding it, even if the Plaintiff and the Defendant knew that the part of the instant insurance contract was null and void by Article 732 of the Commercial Act, it is reasonable to view that the remainder of the grounds for the payment of the insurance proceeds excluding this is still valid. Therefore, the instant insurance contract is still valid.

The judgment of the court below to the same purport is just, and contrary to the allegations in the grounds of appeal, there is no error of law by misapprehending the legal principles as to the scope and interpretation of Article 732 of the Commercial Act. The Supreme Court precedents cited in the grounds of appeal by the defendant are inappropriate to invoke the case in this case

2. As to the assertion that he violated the rules of evidence

Since Nonparty 1, the insured of the instant insurance contract, was an obstacle before the instant accident, this part of the Defendant’s assertion that it should be considered in calculating the insurance money is nothing more than an error of selecting evidence and finding facts which belong to the lower court’s exclusive authority as a fact-finding court, and thus, it cannot be accepted.

3. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ko Young-han (Presiding Justice)