Plaintiff (Seoul High Court General Law Firm, Attorneys Kim Un-sik et al., Counsel for plaintiff-appellant)

Samsung Life Insurance Co., Ltd. (Law Firm Chungcheong, Attorneys Choi Byung-chul et al., Counsel for the defendant-appellant)

June 15, 2004

Seoul Eastern District Court Decision 2000Gahap14697 Delivered on December 27, 2002

1. The part against the defendant in the judgment of the court of first instance shall be revoked, and the plaintiff's claim corresponding to the revoked part shall be dismissed;

2. The plaintiff's appeal is dismissed.

3. The total costs of the lawsuit shall be borne by the plaintiff.

1. Purport of claim and appeal

Of the judgment of the court of first instance, the part against the plaintiff shall be revoked. The defendant shall pay to the plaintiff 111,447,00 won in the primary and conjunctively, with 5% interest per annum from the day following the delivery of a copy of the complaint of this case to the day of the judgment of the court of first instance, and 25% interest per annum from the next day to the day of complete payment.

2. Purport of incidental appeal;

The text of paragraph (1) is as follows.

1. Basic facts

The following facts are not disputed between the parties, or can be acknowledged in full view of the whole purport of arguments in each statement of Gap evidence 1-1 through 4, Gap evidence 4-1, 2, Eul evidence 1-1 through 4, Eul evidence 2-5, Eul evidence 2-1, and Eul evidence 12-30.

A. The defendant is a juristic person operating insurance business, and the non-party 1 worked as an insurance solicitor (living designer) belonging to the defendant's business office of the new Seoul Special Metropolitan City Corporation from April 10, 1998 to December 199. The plaintiff married on May 6, 1987 with the non-party 1 and the non-party 1 and the non-party 1 divorced on August 28, 200.

B. Nonparty 1, on behalf of the Plaintiff, concluded four insurance contracts with the Defendant, such as the entry in the separate sheet No. 1 (hereinafter “each of the instant insurance contracts”) on behalf of the Plaintiff.

C. Since then, Nonparty 1 again referred to as the Plaintiff’s agent, received a loan of terms and conditions (a total of KRW 42,460,000) as shown in the separate sheet No. 2 as collateral for the cancellation refund of each insurance contract of this case, and received the cancellation refund (a total of KRW 5,657,487 after deducting the loans) after cancelling each insurance contract of this case as listed in the separate sheet No. 3.

2. Judgment as to the main claim

A. The plaintiff's assertion

(1) The Plaintiff delivered KRW 70,00,000 to Nonparty 1, the Defendant, the insurance solicitor of the Defendant, for the insurance premium of the insurance [the insurance premium of this case] set forth in Section 4 of Attached Table 1 [the insurance premium of this case, hereinafter “instant 4 insurance”), but Nonparty 1 is obligated to pay only KRW 10,00,000 among them to the Defendant as the insurance premium, and the remainder of KRW 60,00,000 has been arbitrarily embezzled. As such, the Defendant is an insurer pursuant to Article 158(1) of the former Insurance Business Act (wholly amended by Act No. 6891 of May 29, 2003; hereinafter the same shall apply), or as an employer of Nonparty 1, the Defendant is obligated to compensate for the Plaintiff’s damages under Article 756(1) of the Civil Act.

(2) Nonparty 1 applied for a standardized contract loan on behalf of the Plaintiff at his own discretion without the Plaintiff’s consent and received the loan. Since Nonparty 1 also suffered damages equivalent to KRW 51,447,00,00, which was paid to the Plaintiff by terminating each of the insurance contracts of this case and receiving the cancellation refund, the Defendant shall also compensate the Plaintiff for the said damages pursuant to Article 158(1) of the former Insurance Business Act or Article 756(1) of the Civil Act. Even if the terms and conditions and the termination of the insurance contract do not constitute acts related to the solicitation of insurance solicitors, Nonparty 1 did not possess the insurance policy of each of the insurance contracts of this case, without confirming the existence of the right of representation of the Plaintiff, and the Plaintiff suffered damages equivalent to the above insurance premium, the Defendant is obligated to compensate the Plaintiff for the damages.

(b) A portion of the embezzlement of premiums;

(1) Facts of recognition

The following facts may be acknowledged in full view of the purport of the whole pleadings in each entry of Gap evidence 1-4, Gap evidence 3, Gap evidence 7-1 through 12.

(A) On January 4, 199, the Plaintiff borrowed KRW 100,000,000 from Nonparty 2, one of his husband, and then requested Nonparty 1, the husband, to buy an insurance policy from the next day, and paid KRW 100,00,000 as the insurance premium.

(B) Accordingly, Nonparty 1, on behalf of the Plaintiff, purchased each insurance [the 2 insurance of this case, scambling-type, 2-type, hereinafter each “instant 2 insurance”, hereinafter “instant 300,000 won, 29,47,000 won, and 10,000 won, respectively, as the insurance premium for the above 2, 3,04, and 4 insurance, but instead, Nonparty 1 embezzled 60,000 won without undergoing the insurance procedure for the insurance and arbitrarily deposited the account of the Industrial Bank of Korea, and then embezzled it for personal use.

(C) In order to conceal the fact that Nonparty 1 embezzled KRW 60,00,000 as above, he paid KRW 70,000 to the Plaintiff with the insurance premium of the instant 4 insurance. Meanwhile, Nonparty 1 altered the insurance policy of the insurance policy of Nonparty 3, who is the Plaintiff’s mother, with the end part of the right upper part of the insurance amount indicated as “1,00,000 won” and “10,000,000 won” as “7,000,000 won” and “7,00,000,000 won” and “7,00,000,000 won” attached to the above 4 insurance policy and issued the insurance policy after altering the insurance policy to the Plaintiff.

(2) Determination

(A) Article 158(1) of the former Insurance Business Act provides that "the insurer shall be liable for damages inflicted upon the policyholder by its executives, employees, insurance solicitors, or insurance agencies in the course of soliciting insurance contracts. In the event that an insurance solicitor causes damages to the policyholder in the course of soliciting insurance contracts, the above provision which provides that the insurer shall be liable for damages to the policyholder shall take precedence over Article 756 of the Civil Act, which is a general provision on the employer's liability for damages. However, in order for the insurer to be held liable for damages under the above provision, the insurance solicitor's act shall be "an act concerning soliciting insurance, or at least an act relating to soliciting insurance objectively."

(B) As seen earlier, the health team and the non-party 1 received KRW 60,000,000 from the plaintiff upon the request that the plaintiff subscribe to the insurance, while the non-party 1 was in office as the defendant's insurance solicitor. However, according to the above evidence, 100,000,000, including the above KRW 60,000,00 paid to the non-party 1 as the insurance premium group on the same day, the non-party 2, who was the father of the plaintiff, purchased the insurance contract under the name of the plaintiff and contributed to the plaintiff's living, with the increase in the business performance of the non-party 1, who was the husband. The plaintiff specified the insurance products to the non-party 1, and asked the plaintiff to subscribe to the insurance contract and paid the above amount to the above 60,000,000,000,000 won to the non-party 1, who did not receive the above insurance premium or the above insurance contract's insurance purchaser's insurance contract's money.

(C) Therefore, the Defendant’s above assertion is without merit on the premise that Nonparty 1’s act of receiving money is an act relating to the Defendant’s solicitation of insurance solicitors.

C. Terms and conditions loans and acceptance of refund money for cancellation;

(1) Liability for damages under Article 158(1) of the former Insurance Business Act

On the other hand, the non-party 1's act of receiving terms and conditions loans after filing an application for a terms and conditions loan and cancelling each of the contracts of this case and receiving the cancellation refund money does not constitute "act by an insurance solicitor mediating the conclusion of an insurance contract on behalf of an enterpriser" under Article 2 (3) of the former Insurance Business Act, and it is difficult to view that it constitutes an act related to insurance solicitation objectively in appearance (the Gu or non-party 1 was dismissed from the defendant's insurance solicitor around December 1999. The defendant was not in the position of the insurance solicitor at the time of termination of the insurance contract of this case). The plaintiff's above assertion is without merit.

(2) Liability for damages caused by a tort

The above evidence No. 2-1 to 3, Gap evidence No. 7-1 to 12, Eul evidence No. 2-4, Eul evidence No. 5-1 to 6, Eul evidence No. 12-1 to 5, Eul evidence No. 14-1 to 5, Eul evidence No. 14-1 to 15-6, Eul evidence No. 16-1 to 17, Eul evidence No. 18-1 to 4, Eul's certificate No. 18-1 to 18-4, Eul's certificate No. 18-1 to 4, Eul's certificate No. 18-1 to 5, Eul's certificate No. 21-4, Eul's certificate No. 1 to 5, Eul's certificate No. 24-1 to 26, each of the above terms and conditions were not issued to the plaintiff's agent after the cancellation of the insurance contract, and the plaintiff's certificate No. 5-1 to 25-14, respectively.

However, according to the circumstances acknowledged under the following 3-b., it is difficult to view that the Defendant was negligent in violating the duty of care in relation to the payment of the terms and conditions loans or the refund for cancellation on the sole basis of the fact that Nonparty 1 did not possess some insurance policies when cancelling the application for the terms and conditions loan and the insurance contract, and that the Defendant did not directly verify whether the terms and conditions have been granted to the Plaintiff himself/herself. There is no evidence to acknowledge that there was negligence on the part of the Defendant.

3. Judgment on the conjunctive claim

A. The parties' assertion

The plaintiff asserts that, without the plaintiff's permission, the non-party 1 applied for the terms and conditions loan and received the loan by referring to the plaintiff's agent at his own discretion. Furthermore, the termination of each insurance contract of this case and the receipt of the refund money for cancellation is an act of unauthorized representation and has no effect on the plaintiff, and since the plaintiff terminated each insurance contract of this case only with the delivery of a copy of the complaint of this case, the defendant is obligated to return to the plaintiff KRW 11,447,00.

As to this, the defendant asserts that the plaintiff is responsible for the application for the loan of the terms and conditions of the non-party 1, the termination of each of the insurance contracts of this case, and the receipt of the refund for cancellation of the contract of this case at least.

B. Determination

In light of the above, although the plaintiff did not grant the right to request the loan of this case to the non-party 1 and the right to cancel each insurance contract of this case, the non-party 1, as her husband, has ordinary home life rights stipulated in Article 827 of the Civil Act, and thus there is a fundamental right to representation in Article 126 of the Civil Act to establish an insurance contract. Furthermore, it is true that the defendant requires the agent to obtain the loan of each insurance contract of this case or to carry an insurance policy when the insurance contract is terminated. However, in light of the fact that the insurance policy is a evidentiary document issued by the insurer to prove the establishment of the insurance contract, and that the insurer has the right to examine the qualification of the offerer of the insurance contract of this case, and that the insurance contract of this case is merely a non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's right to receive the insurance contract of this case and terminate the insurance contract of this case.

Therefore, according to the legal principles of expression agency under Article 126 of the Civil Code, the application for the loan of the terms and conditions of Nonparty 1 and the termination of each insurance contract of this case and the receipt of the refund money for cancellation thereof are valid. Therefore, the defendant's defense pointing this out is with merit, and

4. Conclusion

Therefore, the plaintiff's main claim and conjunctive claim are all dismissed as they are without merit. Since the judgment of the court of first instance which partially different conclusions is unfair, the part against the defendant in the judgment of the court of first instance is revoked and the plaintiff's main claim corresponding to the revoked part is dismissed, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment List]

Judges Kim Jong-sik (Presiding Judge)