[1] Whether the consent of the insured, who is required in an insurance contract which covers the death of another person as an insured accident, is included in a comprehensive, implied, or presumed consent (negative) / Whether an insurance contract which covers the death of another person as an insured accident without the consent of the insured (negative), and whether an insurance contract can be effective with the approval of the insured (negative)

[2] Where an insurance contract for another person's purpose is invalidated in violation of Article 731 (1) of the Commercial Act, whether a beneficiary can file a claim for damages against an insurance company for tort as to damages caused by the nullification of the insurance contract (negative in principle)

[1] The purpose of Article 731(1) of the Commercial Act stipulating that another person’s written consent shall be obtained at the time of concluding an insurance contract covering the death of the other person as an insured event is to eliminate the existence of a dispute by clarifying the timing and method of consent. Thus, the consent of the other person who is the insured shall be obtained in writing individually for each insurance contract, and there is insufficient comprehensive consent, implied, or constructive consent alone. In addition, according to Article 731(1) of the Commercial Act, the time when the insured person shall express his/her consent in writing in a life insurance for another person is at the time of signing an insurance contract, and the time of signing an insurance contract in violation of Article 731(1) of the Commercial Act is null and void as it is a mandatory provision and thus, the insurance contract becomes null and void if there is no written consent of the insured person at

[2] The insurance contract between the policyholder and the beneficiary for another person is a kind of contract for the third party. If the above insurance contract is invalidated in violation of Article 731(1) of the Commercial Act, which is a mandatory provision, barring special circumstances, barring special circumstances, the insurer cannot claim damages against the insurer due to tort against the loss caused by the nullification of the insurance contract.

[1] Article 731 (1) of the Commercial Act / [2] Article 731 (1) of the Commercial Act, Article 102 (1) of the Insurance Business Act, Article 750 of the Civil Act

[1] Supreme Court Decision 2004Da56677 Decided September 22, 2006 (Gong2006Ha, 1790) Supreme Court Decision 2009Da74007 Decided February 11, 2010 (Gong2010Sang, 535)

Plaintiff 1 and four others

Hyundai Marine Fire Insurance Co., Ltd. (Law Firm Seoman, Attorney Han-won, Counsel for the plaintiff-appellant)

Gwangju District Court Decision 2013Na51564 Decided January 29, 2014

All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.

The grounds of appeal are examined.

1. As to the ground of appeal as to the main claim

A. The purpose of Article 731(1) of the Commercial Act stipulating that another person’s written consent shall be obtained at the time of entering into an insurance contract covering the death of the other person as an insured event is to eliminate the possibility of dispute by clarifying the timing and method of consent. Thus, the consent of the other person who is the insured is not sufficient to make a written consent individually for each insurance contract and to make a comprehensive consent, implied or presumed consent is insufficient. In addition, according to Article 731(1) of the Commercial Act, the time when the insured person must express his/her consent in writing in another person’s life insurance is “ until the time of entering into an insurance contract.” Since it is a mandatory provision, the insurance contract is null and void if there is no written consent of the insured person at the time of entering into the insurance contract, the insurance contract becomes null and void, and even if the insured person has ratified the already invalidated insurance contract, the insurance contract cannot be effective (see, e.g., Supreme Court Decisions 2004Da5677, Sep. 22, 2006>

B. On the grounds indicated in its reasoning, the lower court determined that the instant insurance contract was concluded and null and void without the consent of the insured, on the ground that (1) the insured Nonparty 1 did not directly sign the signature column of the insured at the time of the original insurance contract (hereinafter “instant insurance contract”) and signed on behalf of Nonparty 3, the insured Nonparty 2’s father, and (2) there is no evidence to support that Nonparty 3 was granted the right to written consent from Nonparty 1 to the instant insurance contract, and thus, the instant insurance contract was concluded without the consent of the insured, and thus, rejected the Plaintiffs’ claim for the instant insurance contract premised on the premise that the instant insurance contract is valid

C. The allegation in the grounds of appeal disputing such determination by the lower court is merely an error in the selection of evidence, determination of the value of evidence, and fact-finding based on the free evaluation of evidence belonging to the lower court’s judgment. In addition, even if examining the reasoning of the lower judgment in light of the aforementioned legal principles and the evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine regarding the validity of life insurance contracts of others, or by exceeding the bounds of the principle

2. As to the ground of appeal on the conjunctive claim

(a) Whether a claim for damages is made due to tort or default;

According to Article 102(1) of the Insurance Business Act, an insurance company shall be liable to compensate where its executives, employees, insurance solicitors or insurance agencies (including insurance solicitors belonging to the insurance agencies) inflict damage on policyholders while performing insurance solicitation.

In addition, the insurance contract for the other party is a type of contract for the third party. In the case where the above insurance contract is invalidated in violation of Article 731(1) of the Commercial Act, which is a mandatory provision, barring special circumstances, barring special circumstances, the insurer cannot file a claim for damages due to tort against the insurer for damages caused by the nullification of the insurance contract (see Supreme Court Decision 66Da674 delivered on June 21, 196, etc.).

For the reasons indicated in its holding, the lower court determined that: (a) the liability for damages pursuant to Article 102(1) of the Insurance Business Act provides for an insurance company’s liability for damages to a policyholder; (b) the Plaintiffs, the beneficiary, cannot be held liable directly to the Defendant pursuant to Article 102(1) of the Insurance Business Act; and (c) the Plaintiffs, the beneficiary of the instant insurance contract, which is the insurance contract for a third party, cannot be held liable to the Defendant for tort or nonperformance, unless there are special circumstances, in the event that the contract itself becomes null and void due to the violation of

Meanwhile, according to the evidence duly admitted and the records, Nonparty 2, the policyholder of the instant insurance contract, claimed the return of the premium on the ground that the instant insurance contract was null and void in violation of Article 731(1) of the Commercial Act. On May 9, 2011, prior to the instant lawsuit, Nonparty 2 returned KRW 1,400,000 to the Defendant’s insurance premium paid for the instant insurance contract. In addition, examining the reasoning of the lower judgment in light of the duly admitted evidence, the lower court’s aforementioned determination can be deemed based on the legal doctrine as seen earlier. In so doing, contrary to the allegations in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine as to the existence of the beneficiary’s right to claim damages against the insurance company where the insurance

The Supreme Court precedents cited in the grounds of appeal are different from this case, and thus are inappropriate to be invoked in this case.

B. Whether to claim restitution of unjust enrichment

As long as the insurance contract of this case is null and void, the court below determined that even if the defendant obtained benefits without any legal ground, it is not equivalent to the insurance amount paid pursuant to the insurance contract of this case, which is not invalid, and since it is not recognized that the plaintiffs paid the insurance premium under the insurance contract of this case, it cannot claim the return of

In a case where a contract which forms a legal relationship between a deceased person and a summary in a contract for a third party is null and void or cancelled, the liquidation of such contract shall be conducted between the deceased person who is a party to the contract and the summary thereof (see, e.g., Supreme Court Decisions 2005Da7566, 7573, Jul. 22, 2005; 2010Da31860, 31877, Aug. 19, 2010). In addition, examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine on profits and losses incurred by the invalidation of a contract for another person and unjust enrichment therefrom, etc. as otherwise alleged in the grounds of appeal.

The Supreme Court precedents cited in the grounds of final appeal are different from this case, and thus are inappropriate to be invoked in this case.

3. Conclusion

Therefore, all appeals are 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 Kim Shin (Presiding Justice)