[1] The meaning of "a continuous claim relationship" under Article 3 of the Addenda to the former Regulation of Standardized Contracts Act

[2] Where an insurance contract is concluded prior to the enforcement of the former Act on the Regulation of Terms and Conditions, the binding force of the terms and conditions

[3] Whether an insurance contract concluded by an insurance solicitor in violation of Article 156 (1) 1 of the former Insurance Business Act becomes null and void as a matter of course (negative), and the burden of proof on such violation

[1] Article 2 of the former Act on the Regulation of Terms and Conditions promulgated by Act No. 3922 of Dec. 31, 1986 and enforced from July 1, 1987 provides that "this Act shall apply from the first standardized contract after this Act enters into force," and Article 3 of the Addenda provides that "this Act shall apply to the portion to be implemented after this Act enters into force pursuant to the standardized contract concerning the contract for the purpose of continuous occurrence of claims." In light of the fact that Article 3 of the same Act, which provides for the explanation and explanation of the standardized contract and the effect of the violation thereof, provides that "a contract for continuous occurrence of claims" subject to Article 3 of the Addenda of the same Act, which is subject to the application of Article 3 of the same Act, is interpreted to mean a contract for which a new individual contract is entered into before the enforcement of the same Act, but after the enforcement of the same Act, a new contract is not entered into for several times after the enforcement of the new standardized contract without the enforcement of Article 3 of the same Act."

[2] The fact that a general insurance contract has binding force on a contracting party is not because it itself is not due to the fact that the contract itself has the legal or legal nature, but because it has agreed to include it in the contents of the contract between the contracting parties. Therefore, where an insurance contract is concluded in accordance with a general insurance contract before the enforcement of the former Act on the Regulation of Terms and Conditions (amended by Act No. 4515 of Dec. 8, 192), if the contract is made in accordance with the terms and conditions, the binding force of the terms and conditions shall not be excluded even if the contracting party is unaware of the contents of the insurance contract. However, if the parties have expressly agreed on the terms and conditions, the binding force of the terms and conditions shall be excluded.

[3] Article 156 (1) 1 of the former Insurance Business Act (amended by Act No. 4069 of Dec. 31, 1988) provides that no person engaged in the conclusion or solicitation of an insurance contract shall inform policyholders or the insured of false facts or notify important matters in the contract terms of the insurance contract. However, the above provision provides that if an insurance solicitor violates the above provision, the insurer may be liable for damages under Article 158 of the same Act, depending on the case where the insurance solicitor violates the above provision as a regulation on the soliciting act of the insurance solicitor, it shall not be deemed that all or part of the insurance contract concluded by the insurance solicitor is naturally null and void. And the burden of proving that the insurance solicitor violates Article 156 (1) 1 of the same Act is against the insurer on the ground of such violation.

[1] Article 3 of the former Regulation of Standardized Contracts Act (amended by Act No. 4515, Dec. 8, 1992); Articles 2 and 3 of the Addenda (amended by Act No. 31, Dec. 31, 1986) / [2] Article 638 of the Commercial Act / [3] Article 156 (1) 1 of the former Insurance Business Act (amended by Act No. 4069, Dec. 31, 198); Article 158 of the former Insurance Business Act

[2] Supreme Court Decision 84Meu2543 delivered on November 26, 1985 (Gong1986, 108) Supreme Court Decision 2000Da66492 Delivered on November 27, 2001

Plaintiff 1 and 90 others (Attorney Kang-gu et al., Counsel for the plaintiff-appellant)

Samsung Life Insurance Co., Ltd. (Law Firm Chungcheong, Attorneys Park Yong-ok et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2005Na78485 Delivered on December 27, 2006

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

The grounds of appeal are examined.

1. As to the application of the former Act on the Regulation of Terms and Conditions

Article 2 of the former Act on the Regulation of Terms and Conditions (hereinafter “former Act on the Regulation of Terms and Conditions”) promulgated by Act No. 3922 on December 31, 1986 and enforced on July 1, 1987 provides that “this Act shall apply to the portion of contracts entered into under the first terms and conditions after this Act enters into force,” and Article 3 of the Addenda provides that “This Act shall apply to the portion of contracts to be implemented after this Act enters into force in accordance with the terms and conditions concerning continuous claims relations.” In light of the fact that Article 3 of the Addenda of the same Act provides that the duty to specify and explain the terms and conditions and the effect at the time of the violation of such duty shall be the time when the contract is entered into. In light of the fact that Article 3 of the same Act provides that "a continuous claim relationship" subject to Article 3 of the Addenda of the same Act, which is subject to the application of the same Act prior to the enforcement of the same Act, but only after the entry into force of a new contract, shall not be interpreted as a new contract entered into force under the same Act.

In light of the above legal principles and records, the court below was just in holding that each of the insurance contracts of this case which were concluded by terms and conditions prior to the enforcement of the former Terms and Conditions Regulation Act does not apply to the insurance contracts of this case. In so doing, the court below did not err by misapprehending the legal principles of Article 3 of the Addenda to the former Terms and Conditions Regulation Act or by omitting judgment, as otherwise alleged in the ground of appeal.

2. As to the interpretation, etc. of each of the instant insurance contracts

The binding effect of a general insurance contract on a contracting party is not because it itself is not due to a contract with legal or legal nature, but because it was agreed between the contracting parties to be included in the terms and conditions. Thus, in a case where an insurance contract is concluded pursuant to a general insurance contract prior to the enforcement of the former Terms and Conditions Regulation Act, if the contractual parties are not aware of the contents of the insurance contract, the binding force of the terms and conditions cannot be ruled out even if the contractual parties are not aware of the contents of the terms and conditions. However, in a case where the contractual parties have expressly agreed otherwise with respect to the terms and conditions, the binding force of the terms and conditions shall be excluded (see, e.g., Supreme Court Decisions 84Da2543, Nov. 26, 1985; 200Da6492, Nov. 27, 2001).

The court below rejected each of the plaintiffs' assertion on the payment of each of the insurance contracts of this case in all of the circumstances, including the contents of each of the insurance contracts of this case and the contents of each of the insurance contracts of this case, and the contents of each of the insurance contracts of this case which were agreed to be applied to each of the insurance contracts of this case between the plaintiffs and the defendant, each of the terms of each of the insurance contracts of this case, each of the insurance contracts of this case, the guidance for subscription of this case, the forecast for payment, the contents of each of the insurance policies of this case, the intention of introducing the final dividends system, etc.

In light of the above legal principles and records, the above fact-finding and judgment of the court below are just and acceptable. Contrary to the grounds of appeal, there are no errors in the misapprehension of legal principles as to the interpretation of insurance contracts and terms and conditions, misapprehension of legal principles as to the duty of explanation and explanation of insurance contract, misapprehension of legal principles as to the duty of explanation of insurance contract under the good faith principle or the good faith principle, lack of reasons, violation of the rules of evidence, and transfer of burden of proof, etc.

3. As to violation of Article 156(1) of the former Insurance Business Act

Article 156(1)1 of the former Insurance Business Act (amended by Act No. 4069 of Dec. 31, 1988; hereinafter “former Insurance Business Act”) provides that no person engaged in entering into or soliciting insurance contracts shall inform policyholders or the insured of false facts or notify important matters in the terms of the contract clauses of the insurance contracts. However, the above provision is separate from that where an insurance solicitor violates the above provisions, the insurer may be liable to compensate for damages pursuant to Article 158 of the same Act, depending on the control of the soliciting act of the insurance solicitor, if the insurance solicitor violates the above provisions, and on such circumstance alone, the whole or part of the insurance contracts entered into by the insurance solicitor is not naturally null and void. The burden of proving that the insurance solicitor violates Article 156(1)1 of the same Act is against the insurer on the ground of such violation.

The court below found the facts as stated in its reasoning after compiling the evidence of its employment, and held that even if the defendant's insurance solicitors violated Article 156 (1) 1 of the former Insurance Business Act at the time of each insurance contract of this case, the calculation method of final dividends under each insurance contract of this case and business method cannot be the contents of each insurance contract of this case, and since there is no evidence to prove that the defendant's insurance solicitors provided a conclusive judgment that the final dividends would occur in the future without explaining the possibility of a change in the final dividends, the defendant is liable to pay the final dividends under each of the payment forecast of this case, or to compensate for damages equivalent to the final dividends under each of the payment forecast of this case under Article 158 of the former Insurance Business Act.

In light of the above legal principles and records, the above fact-finding and judgment of the court below are just and acceptable, and there are no errors in the misapprehension of legal principles as to Article 156 (1) 1 and Article 158 of the former Insurance Business Act, violation of the rules of evidence, and the transfer of burden of proof.

4. As to violation of Article 155(3) of the former Insurance Business Act

According to the reasoning of the judgment below, the court below held that although the amount of final dividends are stated in each of the subscription guidelines and the payment forecast table issued by the defendant's insurance solicitors, they are calculated by applying the current interest rate of time deposit in accordance with the "Adjustment Basic for Calculating Insurance Premium and Liability Reserve for Life Insurance" of the financial department of September 2, 1978, and it cannot be deemed that there was a violation of Article 155 (3) of the former Insurance Business Act, and even if the defendant violated the guidelines for preparing life insurance solicitation documents in accordance with Article 155 (3) of the former Insurance Business Act and Article 155 (3) of the former Insurance Business Act, it shall not be deemed that the damage equivalent to the final dividends under each of the payment forecast table of this case was caused to the plaintiffs immediately. In light of the records, the above judgment of the court below is just, and there is no error in the misapprehension of legal principles as to causation of damages and the burden of proof, as otherwise alleged in

5. Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Si-hwan (Presiding Justice)