[1] Where an insurer concludes an insurance contract with a policyholder's agent, the other party to the duty to specify and explain the insurance terms and conditions

[2] The case holding that where a vehicle buyer delegates the authority to enter into an insurance contract to a vehicle seller, it cannot be readily concluded that it granted only ordinary automobile insurance contract which is not subject to special terms and conditions such as limited driving according to age, and that it comprehensively delegates the authority to enter into an insurance contract suitable for the policyholder

[1] Under Article 638-3(1) of the Commercial Act and Article 3 of the Regulation of Standardized Contracts Act, when an insurer concludes an insurance contract with a policyholder's agent, the insurer is obligated to provide the policyholder with specific and detailed explanation and explanation of the important contents of the insurance contract, such as the content of the insurance contract, the system of insurance premium rates, changes in the entries in the written subscription, and reasons for exemption of the insurer's liability. Thus, if the insurer concludes the insurance contract in violation of such duty to specify and explain, the content of the contract cannot be asserted as the content of the insurance contract. However, the counterpart to such duty to explain is not necessarily limited to the policyholder himself/herself, but is sufficient by explaining the insurance contract to the insurer's agent if the insurer concludes the insurance contract with the policyholder.

[2] The case holding that where a vehicle buyer delegates the right to enter into an insurance contract to a vehicle seller, it cannot be readily concluded that the ordinary automobile insurance contract that is not subject to special terms and conditions such as limited driving according to age has been granted, and that the right to enter into an insurance contract is comprehensively delegated to the policyholder

[1] Article 638-3 (1) of the Commercial Code, Article 3 of the Regulation of Standardized Contracts Act / [2] Article 114 (1) of the Civil Code, Article 638 of the Commercial Code

[1] Supreme Court Decision 98Da32564 delivered on November 27, 1998 (Gong1999Sang, 41) Supreme Court Decision 98Da43342, 43359 delivered on March 9, 199 (Gong199Sang, 634 delivered on May 30, 200) Supreme Court Decision 99Da66236 delivered on May 30, 200 (Gong200Ha, 1526)

Dongbu Fire Marine Insurance Co., Ltd. (Attorney Kang Sung-sung, Counsel for defendant-appellee)

Defendant

Seoul High Court Decision 2000Na61680 delivered on March 21, 2001

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. A. According to the reasoning of the lower judgment, the lower court recognized the following facts by comprehensively taking account of the evidence adopted in its judgment.

On October 21, 1999, Nonparty 1, the central head of the office of business, sold the instant vehicle to the Defendant, and purchased an automobile insurance policy on behalf of the Defendant, and then registered the said vehicle and run the number plate. Nonparty 2, the central head of the office of business, requested Nonparty 1, the Plaintiff’s agent, to buy the insurance policy.

In order to verify whether Nonparty 2 would limit the age of the driver of the instant vehicle, Nonparty 2 attempted to have a telephone conversation with the Defendant several times. However, as a result of inquiring into other automobile insurance contracts owned by the Defendant, who could not make a telephone call, confirmed that most of the instant special terms and conditions were subscribed to the limited driving special terms and conditions (hereinafter “the instant special terms and conditions”) over 26 years old, and designed to apply the instant special terms and conditions to the instant vehicle, and notified Nonparty 1 of the content of the insurance design by posting a telephone, and upon Nonparty 1’s consent, concluded the instant insurance contract as indicated in the attached Form of the lower judgment that applied the instant special terms and conditions. At that time, the insurance policy was sent by the Plaintiff and served on the Defendant.

As of the date of the accident, the Special Clause of this case stipulates that the insured person under 26 years of age shall not be paid insurance money for any accident occurred while driving an insured motor vehicle, and the plaintiff gives a discount in the amount equivalent to 30% of the basic insurance premium when the insured person applies the Special Clause of this case.

However, at around 14:10 on February 10, 200, Nonparty 3, an employee of the Defendant, driven the instant vehicle and driven the instant vehicle at a point 6.5 km from the right edge point of the south of the Chungcheongnam-gun Enterprise Highway (hereinafter referred to as “instant accident”) and caused an accident to conceal (vehicle registration number omitted) the vehicle due to a mistake in driving. As a result, Nonparty 4, Nonparty 5, the passenger of the said damaged vehicle, and Nonparty 6, the passenger of the said vehicle, suffered each injury.

B. Furthermore, according to the special terms and conditions of this case, the court below rejected the plaintiff's assertion that "the plaintiff is not obligated to pay insurance proceeds from the accident of this case, since 26 years of age or older is below 26 years of age at the time of the accident at the time of the accident" that "the plaintiff is not obligated to pay insurance proceeds from the accident of this case." There is no evidence to prove that the plaintiff directly explained the contents of the special terms and conditions of this case to the defendant, and the fact that the plaintiff sent the insurance policy of this case to the defendant cannot be deemed as having fulfilled his duty to explain the contents of the insurance contract of this case to the defendant as the insurer, and further, "the non-party 2" did not explain the contents of the special terms and conditions of this case to the non-party 1 delegated with the right to conclude the insurance contract of this case to the defendant and obtained consent from the defendant at least to apply the special terms and conditions of this case to the non-party 1, who did not directly explain the contents of the insurance contract of this case to the defendant as the non-party 1's duty to explain or obtain consent.

2. However, the lower court’s aforementioned determination is difficult to accept for the following reasons.

In accordance with Article 638-3(1) of the Commercial Act and Article 3 of the Regulation of Standardized Contracts Act, when an insurer concludes an insurance contract, the insurer is obligated to specify and explain the important contents of the insurance contract, such as the content of the insurance product, the insurance premium rate system, changes in the entries in the insurance subscription form, and the insurer's reasons for exemption from liability. Thus, if the insurer concludes an insurance contract in violation of the duty to specify and explain such insurance clauses, it cannot be asserted as the content of the contract as the content of the insurance contract (see Supreme Court Decision 98Da4342, 4359 delivered on March 9, 199). However, if the insurer concludes an insurance contract with the policyholder's agent, the other party to the duty to explain is not necessarily limited to the policyholder himself/herself, but is satisfied by explaining the insurance clause to the policyholder's agent.

According to the reasoning of the judgment below, the non-party 1 agreed to enter into the insurance contract of this case on behalf of the defendant while selling the vehicle of this case and facsimileed the documents necessary for the insurance contract of this case, including the defendant's business registration certificate, and consented to enter into the insurance contract by applying the special terms and conditions of this case to the non-party 2. Thus, if the non-party 1 did not agree to enter into the insurance contract of this case on behalf of the defendant, the scope of the right of representation is determined by the circumstances at the time of the act of authorization, trade practice, the parties' intent, etc., and under the above circumstances, the non-party 1 agreed to enter into the insurance contract of this case on behalf of the defendant, unless there are special circumstances, it shall be deemed that the defendant comprehensively delegated the right to enter into the insurance contract of this case on behalf of the defendant to the non-party 1, which is appropriate for the purpose of automobile purchase, the purpose of operation, and the personal characteristics of the driver, etc.

Nevertheless, the court below concluded that the non-party 1 was granted only the authority to conclude the insurance contract for ordinary business cars not subject to the special terms and conditions such as limited driving under age limit, etc. from the defendant, and rejected the plaintiff's claim of this case seeking confirmation of non-existence of the insurance claim against the defendant for the reasons stated in its reasoning (The record reveals that the contract of this case entered into between the plaintiff and the defendant includes the large liability insurance company, which is not subject to the above special agreement, in addition to the large liability compensation II applicable to the secured issue, as well as the large liability insurance contract of this case entered into between the plaintiff and the defendant. Thus, the court below did not determine the existence of the liability to pay the insurance claim for the large liability insurance company, which is a liability insurance company, on the ground that there is no dispute between the parties as to the existence of the liability to pay the insurance claim for the large liability insurance company, which is a liability insurance company, it did not err in the misapprehension of the rules of evidence or by misapprehending the legal principles

3. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Yong-woo (Presiding Justice)