(영문) 대구고등법원 2012.11.30.선고 2012나2287 판결

1. Of the judgment of the court of first instance, the part against the plaintiff corresponding to the money ordered to be paid below shall be revoked. The defendant shall:

A. As to KRW 16,630,00 and KRW 10,810,00 among them, from May 22, 2007 to KRW 2,00,000, from April 6, 2008 to KRW 2,000, from April 6, 2009 to KRW 50,000, from April 6, 2010 to KRW 50,000, from April 6, 2011 to KRW 50,00,00, from April 6, 2011 to KRW 50,000 shall be paid the amount from April 6, 201 to KRW 50,00,00 to each other; and from December 3, 2008 to December 30, 206 to each other, the amount shall be repaid.

B. Payment of KRW 500,000 on April 5, 2013

2. The plaintiff's remaining appeal is dismissed.

3. 30% of the total costs of litigation shall be borne by the Defendant, the remainder of 70% by the Plaintiff, respectively.

4.The payment portion of paragraph 1 above may be provisionally executed.

Purport of claim and appeal

1. Purport of claim

The defendant sent to the plaintiff KRW 52,630,00 and a copy of the complaint of this case from April 5, 2004.

6% per annum and 20% per annum from the following day to the date of full payment.

payment of KRW 1,00,000 on April 5, 2013 (the plaintiff is claimed in the appellate court after remanding)

was reduced.

2. Purport of appeal

The judgment of the first instance shall be revoked. The defendant shall be KRW 69,060,000 and the father of April 5, 2004 as to the plaintiff.

ter 6% per annum and 20% per annum from the following day to the date of complete payment of the copy of the complaint of this case

5 April 5, 2008 to April 5, 2009 shall be paid the amount of money calculated by each ratio, and the amount shall be paid from April 5 to April 5, 2009.

10,250,00 won each, and 3,500,000 won each year from April 5, 2010 to April 5, 2013.

D. Lower level:

Reasons

1. Scope of the judgment of this court;

The part of the claim in this case before the plaintiff's remand and the claim in insurance money related to the Lee Jong-chul was already determined by the judgment of remand and excluded from the scope of the party members' judgment.

2. Basic facts

A. On July 24, 1995, C, the husband of the Plaintiff, entered into an insurance policy amount of 20,000,000 won, monthly insurance premium of 209,700 won (including the amount of insurance premium under each of the following special agreements) with the Defendant on July 24, 2009, monthly insurance premium of 209, the primary insured C, and the insured under a private annuity savings contract of 20,000,000 won (hereinafter referred to as a "main contract"), entered into an insurance policy for disability pension (50,000,000 won), entered into an insurance policy for disability pension (in the case of an insurance policy) or special agreement for ensuring the health of the insured, with the special agreement for admission of the insured (10,000,000,000 won) or special agreement for ensuring the health of the insured (10,000,000 won, 00,000 won or less, 00,000 won,00

B. The general insurance clause of the instant insurance contract is the first insurance period from the date of the subscription to the insurance contract until the day preceding the date of commencing the payment of old age pension ( July 23, 2009) and the second insurance period to determine whether the payment of old age pension will be terminated from the date of commencement (Article 1(1)).

C. According to the terms and conditions of the special agreement for accident disability pension, the insured of this special agreement shall be the principal insured and the insured in the principal contract in the case of the married couple (Article 2), and if the insured becomes disabled of Grades II through VI in the list of disability classification for direct reasons of the disaster grade in the insurance period of the said special agreement (Article 2), the insured of this special agreement shall pay to the beneficiary 7% of the subscription amount of the special agreement, 5% in the case of the third grade disability, 3% in the case of the third grade disability, 1.5% in the case of the fifth grade disability, 1.5% in the case of the fifth grade disability, and 1% in the case of the sixth grade disability in the case of the third grade disability), and the insurance period of the special agreement shall be paid to the beneficiary for two or more kinds of disability in the case of the insured under the same cause (Article 2(1) and attached Table 1). Article 2(1)5(1) of the special agreement shall be paid to the beneficiary for the insurance period (Article 2(1).

D. According to the terms and conditions of the special agreement for hospitalization of a spouse, the insured of this special agreement shall be the insured of the principal contract (Article 2(1)). In the event that the insured of this special agreement directly causes disease or accident as determined by the disease and disaster rating table during the insurance period of the said special agreement and directly causes for at least four days for the purpose of treatment, 0.1% of the subscription amount per special agreement per day exceeding three days shall be paid to the beneficiary for hospitalization (Article 3(1)). In the case of paragraph (1) of this Article, the subscription amount shall be 120 days per time of hospitalization (Article 3(3). In the case of paragraph (3) of this Article, the subscription amount shall be the maximum limit of 120 days per admission (Article 3(3). In the case of paragraph (3) of this Article, if the subject is hospitalized twice or more for the direct purpose of the treatment of the same disease or accident, the total number of days of hospitalization shall be considered as one time, and each special agreement shall be applied after the expiration of Article 18(3).

E. According to the terms and conditions of the special agreement for traffic accident security, the insured of this special agreement shall be the primary insured and the insured in case of the couple type (Article 2), 100% of the subscription amount for the special agreement if the insured becomes a condition of disability in grade I in the list of grades I due to a traffic accident during the insurance period of the said special agreement, 35% of the subscription amount for the special agreement, 25% of the subscription amount for the special agreement, 25% for the third grade disability, 7.5% for the fourth grade disability, 5% for the fourth grade disability, 5% for the fourth grade disability, and 6% for the first grade disability, and 5% of the subscription amount for the special agreement for traffic accident as of the pertinent date of each year, including the date of the accident (Article 4(1)1 and Article 4(1)2, and Article 1(1)2, and the insured shall be paid for the same insurance period in case of the second grade through Grade VI disability pension (Article 6).

F. The physical disability falling under class 2 of the disability classification table of the terms and conditions of the instant special agreement includes "when they have to undergo occasional nursing after leaving a clear obstacle to the new boundary or mind (No. 1)," "when they have left a clear climate or serious playgrounds permanently (No. 9)", and "when they have left a significant stadium in vertebrate (No. 15)" as to physical disability falling under class 3, and "when they have left a significant stadium in vertebrate (No. 15)." The following matters constitute a disaster set forth in the disaster classification table of the terms and conditions of the special agreement on disability pension:

G. Around 18:50 on April 5, 2004, the Plaintiff was diagnosed at the hospital as follows: (a) an accident that conflicts with the E-driving 00 U.S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. L. S. S. S. S. S. S. S. S. S. S. S. L. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S.

[Ground of recognition] Facts without dispute, Gap evidence 1 to 3, Gap evidence 4-1 to 4, Gap evidence 13, the purport of the whole pleadings

3. Determination

A. Determination on the cause of the claim

1) As to the claim for insurance related to a mental disorder

A) The plaintiff's assertion

The Plaintiff caused severe stress disorder and depression caused by the instant accident, which cause a serious fall of recognition ability and memory, and considerable depression and apprehensions, thereby causing a serious trouble in daily life and social life. In addition, on November 201, the result of the MOA’s inspection on the Plaintiff implemented at Daegu Veterans Hospital, which was conducted on or around 1, 201, and the Plaintiff diagnosed as a result of training and cerebral cerebrovascular typhism in detail, a detailed unknown closure, or a cerebral typhephism with a serious degree of 00,000,000 won and 4.0,000 won and 00 won and 0.0 won and 4.0 won and 0.0 won and 5% of the disability pension under the above special agreement, and the degree of the disability falls under 0.5% and 0% of the 0th 5th 4th 0th 6th 6th 0,000, respectively.

B) Determination

갑 제34호증, 제36호증의 3, 4의 각 기재에 변론 전체의 취지를 종합하면, 2011. 11.경 및 2012. 10. 19.경 대구보훈병원과 서울아산병원에서 시행한 원고에 대한 MRA 검사결과, 원고의 병명은 연수 및 뇌에 혈류공급을 담당하는 기저동맥의 상세불 명의 일과성 대뇌허혈발작, 상세불명의 폐쇄 또는 협착에 의한 뇌경색증으로 진단된 사실, 변론종결일 현재 원고는 치매로 인하여 인지기능과 일상생활기능이 현저하게 손 상된 사실을 인정할 수 있으나, 나아가 이러한 원고의 뇌경색증 또는 치매증상이 이 사건 사고로 인하여 초래된 것인지 또는 원고가 치매증상과는 별도로 이 사건 사고로 인한 극심한 스트레스 장애로 인하여 이 사건 특약 장해등급분류표 제2급 제1호에 해 당하는 상태를 초래하였는지 여부에 관하여 살피건대, 갑 제4호증의 5, 6, 7, 19, 제5호 증의 2, 제8호증, 제18호증의 2, 3, 4, 5, 6, 제20호증의 1 내지 6, 제26호증의 각 기재 만으로는 이를 인정하기에 부족하고 , 달리 이를 인정할 증거가 없으며, 오히려 제1심 법원의 경북대학교병원장에 대한 신체감정촉탁에 의하여 2008. 7. 11.경 작성된 정신감 정서 및 2008. 11. 19.경 작성된 정신감정보완서에는, ① 이 사건 사고 당시 뇌 실질의 손상은 없었던 것으로 보이는 점, ② 2007. 3. 19. 경북대학교병원에서 촬영한 뇌파검 사에서 이상소견이 없었던 점, ③ 이전에 원고를 진료한 의사들의 진단명은 뇌 실질의 손상이 없음을 말해주는 '외상 후 증후군, 외상 후 스트레스 장애, 주요 우울증'이었던 점, ④ 원고가 호소한 주된 증상들은 처음에는 두통, 어지럼증, 수면장애, 과각성, 사고 기억 재생 등 뇌진탕 증상이나 외상 후 스트레스 장애를 의심할 증상들이었는데, 시간 이 지날수록 치매 비슷한 증상을 호소하는 것은 이해하기 어려운 점, ⑤ 원고는 심리 검사 과정에서 과장된 행동을 함으로써 심리검사 결과가 과장되게 나온 것으로 보이는 점 , ⑥ 2008. 7. 10. 경북대학교병원에서 촬영한 뇌 자기공명단층촬영 소견으로 치매를 의심할 만한 뇌 손상의 흔적이 없는 점에 비추어, 원고에 대한 정신과적 진단은 중등 도의 외상 후 적응장애에 해당하나, 이 사건 보험약관의 장해등급분류표 중 어디에도 해당하지 않고, 한시적으로 26 % 의 노동능력상실율에 해당하며 원고의 평소 성격이 50 % 관여할 것으로 추측되고, 원고는 이 사건 사고 당시 뇌진탕 증상은 있었을 것으로 보이나 뇌파검사 및 뇌자기공명단층촬영에 특별한 소견이 없어 뇌 실질에 손상을 주는 뇌좌상은 없었을 것으로 보이며, 외상 후 스트레스 장애는 뇌에 충격이 없더라도 생기 는 심리적인 병인데 반해 치매는 뇌실질의 병이라고 기재되어 있는 사실이 인정될 뿐 이다[원고는, 치매여부의 판단은 MRI(자기공명단층촬영), MRA(뇌혈류검사 ) 뿐만 아니 라 내측 측두엽 부위에 대한 포도당 대사 감소여부 등을 관찰하고 여기에 심리학적 평 가 등 인지기능검사를 종합하여 하여야 하나, 제1심 법원의 경북대학교병원장에 대한 신체감정촉탁에 의하여 2008. 7. 11.경 작성된 정신감정서 및 2008. 11. 19. 경 작성된 정신감정 보완서는 원고에 대하여 MRI(자기공명단층촬영) 검사만 실시한데다 자체에서 실시한 심리학적평가보고서를 무시한 것이어서 믿을 수 없다는 취지로 주장하나, 경북 대학교병원에서의 신체감정 당시 원고가 치매증상을 보이고 있었다고 하더라도, 그 증 상이 이 사건 사고로 인하여 초래된 것이라는 점에 관하여는 갑 제8호증, 제26호증( 서 울대학교 병원에서 2009. 10. 26.부터 2009. 11. 3.까지 원고에 대한 검사를 실시한 후 작성한 신체감정서로서, 원고의 치매증상이 이 사건 사고와 인과관계가 있다는 주된 근거로, 원고는 이 사건 사고 이전에 정신과적인 기왕증을 앓은 적이 없는 사람이었으 나 이 사건 사고 이후에 치매증상을 보이기 시작하였다는 점을 들고 있으나, 원고는 교통사고 직후 외상 후 스트레스 장애를 호소하다가 이후 시간이 경과하면서 치매증상 을 보이기 시작하였는데, 외상 후 스트레스 장애는 심인성 장애인데 반하여 치매증상 은 주로 기질적인 변화를 원인으로 하는 점에서 위 두 증상의 연결성이 부족한 점, 원 고가 치매증상을 보이기 시작한 시기와 교통사고 발생시점과의 간격, 원고의 나이 등 을 고려할 때, 위 신체감정서의 내용을 그대로 받아들이기는 어려워 보인다 ) 의 각 기재 만으로는 이를 인정하기에 부족하고, 달리 이를 인정할 증거가 없다 .

2) As to the claim for insurance money related to the Galina

A) The plaintiff's assertion

The plaintiff caused the accident of this case to the 2nd head of the cage cage cage cage cage cage cage cage cage cage cage cage cage cage cage cage cage cage cage cage cage cage cage cage cage cage cage cage cage cage cage cage cage cage cage cage cage cage cage cage cage cage cage cage cage cage cage cage cage cage cage cage cage cage cage cage cage cage cage cage cage cages

Therefore, the Defendant is obligated to pay the Plaintiff KRW 2,50,000,000 for the traffic accident treatment fund under the special agreement for traffic accident security, and KRW 500,000 for 10 years from April 5, 2004 through April 5, 2004 ( KRW 4,500,000 for the last time until the closing of argument in the trial after refund), and the disaster disability pension under the special agreement for the accident disability pension under the special agreement for the first time from April 5, 2004 to July 23, 2009, which is the closing day of the first time insurance period, for the first time from April 5, 2009.

B) Determination

(1) In full view of the following facts: (a) No. 10 and No. 9-2 and No. 11 of the evidence No. 4-2 and No. 11 of the above evidence; (b) the result of physical entrustment to the head of the Gungbuk University Hospital (out of the first instance court) and the purport of the conclusion of the arguments as a result of the appraisal and supplementation, the Plaintiff suffered injury to the escape certificate of the 2nd degree due to the instant accident; (c) No. 3-4, No. 5-6, No. 6-7; and (d) accordingly, the Plaintiff did not have an obligation to pay the insurance proceeds of No. 10 and No. 15 of the Table No. 4 of the Insurance Terms and Conditions No. 10 (in case where the Plaintiff kept a permanent interest in spine) with the insurance proceeds of No. 100,000,000 won with the insurance coverage of No. 10,500,000 won with the insurance coverage of No. 20. 50.

(2) As to this, the defendant claimed that the plaintiff's physical disability pension is not related to the accident of this case, and the plaintiff's physical disability is not related to the accident of this case, and the plaintiff's physical disability is not related to the accident of this case, and the plaintiff's physical disability is not related to the accident of this case, and the accident of this case is not related to the accident of this case, and the accident of this case is not related to the accident of this case, and the accident of this case is not related to the accident of this case, and the accident of this case, the accident of this case, which occurred before the day of the day of the commencement of the liability of the insurance contract of this case, the accident of this case has already been related to the accident of this case, and the accident of this case, the accident of this case has already occurred to the insured who had a physical disability of this case before the day of the accident of this case. Thus, the plaintiff's claim for disability pension of this case is not related to the accident of this case.

In light of the Plaintiff’s overall purport of oral argument No. 5-3 and No. 4, if the Plaintiff’s 2nd 8th 2nd 3rd 7th 5th 5th 5th 5th 5th 5th 5th 5th 6th 5th 5th 5th 5th 5th 5th 5th 5th 5th 5th 5th 5th 5th 5th 5th 5th 5th 5th 5th 10th 5th 10th 10th 10th 10th 2th 9th 10th 1st 3th 5th 195, the Plaintiff’s 2nd 8th 5th 1st 1st 5th 195th 1st 3th 10th 5th 10th 1st 5th 195th 1st 3th 8th 195. 1st 3th 8th 1st 197th 1.

3) As to the claim for hospitalization benefits

If evidence Nos. 5-1, 2, 3, 4, and 28-1, 28-2 of the evidence Nos. 5-1, the Plaintiff is fully aware of the purport of the entire pleadings, the Plaintiff is obligated to provide the Plaintiff with a special agreement on hospitalization for more than 96 days from April 10, 204 to July 14, 2004, to the National Police Hospital for 71 days from July 30, 2004 to October 8, 204, to the Master University Hospital for 14 days from February 9, 2006 to February 22, 20 of the same year, from 30 days from the date of hospitalization to 35 days from October 29, 208 to 30 days from the date of entrance to the National University Hospital for 30 days from 30 days from the date of entrance to the date of 35 days from the date of entrance to the date of 30 days from 30 days from the date of entrance to 16 days (20 days from the date of entrance).

In this regard, the defendant asserted that the hospitalization at the National Police Hospital was not subject to the payment of hospitalization benefits because there is no need to do so, and therefore, according to the fact inquiry letter prepared by the National Police Emergency Department No. 7-1, 2004, 'the fact inquiry letter prepared by the National Police Hospital Emergency Department' was confirmed on April 9, 2004, which was conducted by the plaintiff at the time of birth of the plaintiff, and that there is no need to be hospitalized in the first medical department and the medical opinion of the doctor in charge, but it is considered that there is no strong need to be hospitalized in the first hospital because of the patient's desire to be hospitalized, but there is no need to be hospitalized in the first hospital No. 7-1, No. 4-1, 5, 6, 8, 10, 12, 13, and 16, the plaintiff's assertion that there is no further need to be hospitalized in the National Police Hospital No. 7-1, referring to the above fact that there is no further need to find any further a chronic gal injury.

B. Judgment on the defendant's defense of extinctive prescription

1) Determination on the statute of limitations defense

A) Defendant’s assertion

According to Article 662 of the Commercial Act, the right to claim insurance is terminated by prescription if it is not exercised within two years. The right to claim insurance is only abstract right before the occurrence of the insurance accident, but it is possible to exercise the right from that time when the insurance accident occurred. Thus, in principle, barring any special circumstance, the extinctive prescription of the right to claim insurance should be interpreted to run from the time the insurance accident occurred. Since the lawsuit of this case seeking the payment of insurance money under the principal contract and special agreement against the defendant was filed on May 7, 2007 after two years from the date when the accident occurred, the date when the accident occurred, and thus, the plaintiff's right to claim insurance prohibition terminated by prescription.

B) Determination

In a peremptory notice as a reason for interrupting prescription under Article 174 of the Civil Act, where an obligor who has received a peremptory notice to perform his/her obligation requests postponement of performance against an obligee on the ground that it is necessary to examine the existence of such obligation, the peremptory notice shall be deemed to continue until the obligee receives a reply. Therefore, the period of six months as provided in the same Article shall be interpreted to be calculated from the time when the obligee receives a reply from an unqualified person (see, e.g., Supreme Court Decisions 2004Da16976, Apr. 28, 2006; 2005Da25632, Jun. 16, 2006; 2010Da9467, May 27, 2010).

In full view of the purport of the arguments in Gap evidence Nos. 9 and 10, and 12, the plaintiff filed a claim for insurance proceeds by receiving a claim for insurance proceeds and a disability diagnosis from the defendant company on April 4, 2006 and on April 17, 2006, and the defendant sent a notice that the treatment is delayed due to additional confirmation on April 14, 2006. In response, the defendant requested the issuance of a certificate of personal seal impression necessary for the issuance of the above medical records by confirming the degree of the plaintiff's disability and the causal relationship with the accident of this case, but the plaintiff refused to issue the above medical records, and the defendant presented a statement to the purport that it is impossible to review the payment of insurance proceeds without any delegation document necessary for the issuance of the medical records and return the documents submitted to the plaintiff's medical records to the court of first instance on May 2, 2006. However, the defendant visited the plaintiff and the person in charge of the medical treatment of this case on July 3, 2006 to verify the causal relationship between the plaintiff and the plaintiff 1.

Examining the above facts in light of the legal principles as seen earlier, the Plaintiff’s request for payment of insurance money to the Defendant several times prior to the lapse of the extinctive prescription constitutes a peremptory notice which serves as the ground for suspending the extinctive prescription period. Accordingly, the Defendant’s personnel in charge of the Defendant Company requested submission of documents necessary for the claim for insurance money and sought confirmation of causation and degree of disability by finding the Plaintiff’s principal values, or requested postponement of performance until the Plaintiff confirmed the existence and amount of the Plaintiff’s claim for insurance money and notified the Plaintiff thereof. In such a case, it shall be deemed that, until a reply as to whether the insurance money is paid or not, the highest period of six months as stipulated in Article 174 of the Civil Act shall continue until the payment of the insurance money is confirmed, and thus, even if it can be seen that the Defendant’s request for payment of insurance money could be seen as a result of the refusal of payment of insurance money, it is not clear that the Defendant’s claim for payment of insurance money was extinguished as the Defendant’s defense against the Defendant’s claim for payment of insurance money.

2) As to the assertion on the claimant for insurance proceeds

The defendant asserts that the plaintiff is not the plaintiff but the plaintiff's husband, but the plaintiff's claimant for hospitalization and disability insurance based on the insurance contract of this case. However, as seen earlier, in light of the fact that the beneficiary of hospitalization and disability insurance is the insured, and the plaintiff is stated as the insured, the plaintiff is also a beneficiary of hospitalization and disability insurance. Thus, the defendant's above assertion has no merit.

C. Sub-committee

Therefore, with respect to the amount of 16,630,00 won (i.e., 15,000 won and hospitalization benefits of 1,630,000 won) and 10,810,00 won (i.e., 1,50,000 won for treatment of traffic + 2,000 won for the traffic accident, 60,000 won + 6,000 won for the amount of 1,50,00 won for the performance of the duty of 20.0 won for the performance of the duty of 20.0,00 won for the traffic accident, 6,000 won for 1,00,000 won for admission and 1,00,000 won for 1,000 won for 20,000 won for each of 20,000 won for the performance of the duty of 1,50,000 won for the traffic accident).

4. Conclusion

Therefore, the plaintiff's claim of this case is justified within the scope of the above recognition, and is dismissed as it is without merit. Since part of the judgment of the court of first instance different conclusions are unfair, it is revoked, and the defendant is ordered to pay the money stated in the order against the defendant, and the remaining appeal by the plaintiff is dismissed as it is without merit. It is so decided as per Disposition.