2012dan338877 Insurance proceeds (main office)

2013dan5025326 (Counterclaim)

A

B Stock Companies

C Stock Companies

November 1, 2013

January 24, 2014

1. The succeeding intervenor of the Defendant-Counterclaim Plaintiff pays to the Plaintiff (Counterclaim Defendant) 20,220,000 won with interest of 20% per annum from December 27, 2012 to the day of complete payment.

2. The defendant (Counterclaim plaintiff) succeeding intervenor's claim against C Co., Ltd. is dismissed.

3. The costs of lawsuit are assessed against the Defendant-Counterclaim Intervenor by adding the principal lawsuit and the counterclaim to the lawsuit.

4. Paragraph 1 can be provisionally executed.

The main office is as set forth in Paragraph (1).

Counterclaim: The insurance contract entered in the separate sheet entered into between the Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”) and the Defendant (Counterclaim Plaintiff; hereinafter “Defendant”) is null and void. The Plaintiff will pay to the Intervenor succeeding to the Defendant 61,200,000 won with interest of 5% per annum from February 14, 2013 to the delivery date of the instant counterclaim and 20% per annum from the next day to the day of full payment.

1. Basic facts

A. On June 27, 2007, the Plaintiff entered into a contract between the Defendant and the insured, and the insurance period from June 27, 2007 to June 27, 2054, with the monthly insurance premium of KRW 80,000 (hereinafter “the insurance of this case”), and entered into a 16th specific type of disease security special agreement (hereinafter “special agreement of this case”) with the insurance money as KRW 5,000,00,000, and also included a 5,0000 amount of the insurance money in the terms of the contract.

B. On June 8, 2009, the Plaintiff received surgery on each side of the sludges on the grounds of smoke dystyphism at a hospital, and hospitalized in the above hospital from April 20 to 20 of the same month, which was before and after the operation period.

The plaintiff asserted that the above operation was conducted twice, and that the insurance money per time was paid to the 16th specific disease security special agreement with the insurance money as KRW 5 million per time, and also to the 16th specific disease security special agreement with the insurance money as KRW 5 million per time under the 5 million special agreement with the women's exclusive disease medical treatment expenses amounting to KRW 10 million per each special agreement ( KRW 5 million X 20 million). However, the defendant claimed the insurance money of KRW 20 million per time under the 5 million special agreement, while the defendant was under the 20 million total of KRW 5 million per each special agreement.

C. On September 20, 201, the Plaintiff was diagnosed as “other non-toxic high-risk disease” (A) at E Hospital on September 20, 201, and was hospitalized from the 20th to the 23th day of the same month.

The Plaintiff claimed insurance money of KRW 100,000,000,000 in total, each of the five million won according to the Special Agreement on the Specific Disease of this case, and KRW 50,000,000 in total, and KRW 122,00,000 in total, according to the special agreement on the security for admission into a disease, based on the special agreement on the special agreement on the security for admission into a disease, but the Defendant refused to pay for the following reasons: (a) the Defendant did not fall under the alcohol.

D. Accordingly, the Plaintiff claims for the payment of the insurance proceeds of KRW 10 million, and KRW 10,220,000,000,000 as stated in Paragraph (b) as the principal lawsuit.

E. On the ground that the defendant does not constitute a ground for payment of insurance money or the insurance contract of this case is null and void against the public order and good morals, the plaintiff's assertion in the principal lawsuit cannot be accepted. Rather, if the plaintiff acquired insurance money equivalent to the amount stated in the claim for the counterclaim that the plaintiff already received without any legal ground, the plaintiff sought confirmation of invalidity of the insurance contract of this case and the return of the insurance money already

F. Meanwhile, on May 3, 2013, the Defendant’s successor succeeded to the Defendant’s status by taking over the Defendant’s status and business under all insurance contracts from the Defendant.

[Ground of recognition] Facts without dispute, Gap evidence 1-1, Gap evidence 2-5 (including provisional number), the purport of the whole pleadings

2. Determination

(a) Whether the frequency of surgery is one time or two times, if both slots are operated on the same day;

Article 4 of the Terms and Conditions of Special Contract for a Specific Disease and a Women's Disease Special Contract provides that the insurance money of one million won per operation shall be paid on the basis of the amount of insurance covered by the special contract per operation in the case of an operation due to the relevant disease. Therefore, in the case of the insurance of this case where the amount of insurance covered by the special contract is five million won, there is no dispute between the parties that the insurance money per operation is five million won.

On the other hand, the plaintiff asserts that the frequency of operation should be determined by the parts of the operation, and the defendant asserts that it should be determined by the time of operation.

In light of the social norms, it is reasonable to view that there is no ground to view that the expenses incurred in the operation on the same day are entered into one half of the expenses incurred in the operation on the different days and that the expenses incurred in the operation are in large places. ③ The plaintiff entered into the insurance contract of this case for the purpose of lowering the expenses incurred in the operation on the same day to a certain extent. Although the contents of the operation are the same, if the insurance money is to be paid only one time only on the same day on the ground that the plaintiff performed the operation on the same day, the insurance money would be paid only half the expenses incurred in the operation on the different day. ④ It is unreasonable to view that the plaintiff concluded the insurance contract of this case with the exception that the expenses incurred in the operation on the same day would not be considered to have been incurred in the operation on the same day, ⑤ It is reasonable to consider that the defendant did not claim the expenses incurred in the operation on the other day and that the expenses incurred in the operation on the same day, and in light of the frequency of the insurance contract of this case, the number of times alleged by the defendant did not claim against the plaintiff.

Therefore, based on the instant special contract for specific diseases, the Plaintiff may file a claim with the Defendant for a two-time surgery allowance and four-time surgery allowance on the basis of the instant special contract for specific diseases. In the case of the instant insurance contract, there is no dispute between the parties as to the fact that the first surgery allowance is five million won, and thus, the Defendant is obliged to pay the Plaintiff the surgery allowance of KRW 20 million (=5 million x four times).

Nevertheless, since the defendant paid only the operating allowance of KRW 10 million, this part of the plaintiff's assertion seeking the payment of the remainder of KRW 10 million is with merit.

C. Whether high-frequency heat therapy constitutes a veterinary alcohol due to the training and rehabilitation of the above-mentioned vessels

According to the terms and conditions of the insurance contract of this case, "the operation" means the operation of a body by using an apparatus for the direct purpose of treating 16th specific diseases or women-only diseases under the control of a hospital, a clinic, or a medical institution recognized by a company as equivalent thereto, where it is deemed that the treatment of 16th specific diseases or women-only diseases is required by a doctor, and it excludes measures such as smoking, astronomical, etc. and the blocking of negos.

On the other hand, it is not a dispute between the parties to the extent that the term "offs" in the above terms and conditions mean that the specific part is well set up, and that the term "offs" means the removal of the specific part in good faith.

The defendant asserts that the defendant does not fall under the category of surgery provided by the above terms and conditions.

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Thus, the plaintiff's insurance claim on the premise that this case's insurance contract falls under the scope of alcohol (see, e.g., paragraph (c) of this case's insurance claim (see, e.g., the basic fact) is reasonable.

Therefore, the defendant is obligated to pay the insurance proceeds of KRW 10,220,000 under each of the special agreements of this case to the plaintiff, except in extenuating circumstances.

C. Whether the instant insurance contract is null and void since the Plaintiff’s act of concluding multiple insurance contracts violates the public order and good morals

The defendant argues that the insurance contract of this case is null and void because the plaintiff subscribed to a multiple number of insurance policies, received the insurance money after being hospitalized, and it received a large amount of the insurance money after repeating the hospital treatment for long time. Thus, the insurance contract of this case was concluded for the purpose of pretending the insurance accident or acquiring the insurance money unlawfully by exaggerationing the degree of the insurance accident, and it is contrary to good morals and other social order

An act of anti-social order null and void under Article 103 of the Civil Act includes not only cases where the contents of rights and obligations which are the object of a juristic act violate good morals and other social order, but also cases where the content itself legally enforces it, or lacks anti-social order conditions or monetary consideration, and where the motive of a juristic act indicated or known to the other party is anti-social order (see, e.g., Supreme Court Decisions 9Da3311, Nov. 27, 2001; 99Da56833, Feb. 11, 200; 99Da56833, Feb. 11, 200; 9Da56839, Feb. 200). Where an insurance contract was concluded for the purpose of denying the payment of insurance money through multiple insurance contracts, the payment of insurance money by an insurance contract concluded for such purpose would be in violation of social order by encouraging the speculative spirit to gain unjust benefits by abusing the insurance contract, thereby impairing the rational diversification of the insurance system, and impairing the good morals of insurance system, 20015.29.

Meanwhile, inasmuch as there is no evidence to directly acknowledge whether a policyholder entered into multiple insurance contracts for the purpose of illegally acquiring the insurance proceeds, such purpose may be ratified based on the following circumstances: (a) the policyholder’s occupation and property status; (b) details leading up to the conclusion of multiple insurance contracts; (c) scale of insurance contracts; and (d) circumstances after the conclusion of the insurance contracts (see Supreme Court Decision 2005Da23858, Jul. 28, 200

B. From June 11, 2002 to March 18, 2011, the Plaintiff concluded 12 insurance contracts with the Plaintiff as the insured including the instant insurance; the Plaintiff had already purchased six insurance prior to the conclusion of the instant insurance contract; and the Plaintiff received total amount of KRW 61,200,000 from the Defendant does not conflict between the parties.

However, in light of the following circumstances, it is difficult to view that the conclusion of the instant insurance contract is contrary to good morals, solely on the aforementioned circumstances, in view of the following circumstances, which are acknowledged to add the purpose of pleading to the tax information reply to this court by the director of the Namyang District Tax Office on the aforementioned evidence.

① According to the tax information reply to this Court by the director of the Namyang District Tax Office, the Plaintiff’s income appears to fall under KRW 84,757,620 in 207, KRW 22,99,200 in 208, KRW 33,239,873 in 2009, KRW 33,239,873 in 2010, KRW 8,112,344 in 201, KRW 48,431,592 in 2012. In particular, it appears that the Plaintiff’s income was considerably high in around 2007 when considering the overall period.

② At the time when the Plaintiff entered into the instant insurance contract with the effect or termination of the four insurance contracts prior to the conclusion of the instant insurance contract, only two identical life insurance policies, and the monthly payment was merely 65,50 won (=25,750 won + 39,880 won) and cannot be deemed to be more than the Plaintiff’s income. The sum of the instant insurance premium and the monthly insurance premium for the instant insurance after the instant insurance contract was entered into is KRW 280,810 (= KRW 77,400 + KRW 13,410 + KRW 89,000 + KRW 21,000). In light of the foregoing, it is difficult to view that the instant insurance premium was excessive in light of the Plaintiff’s income.

③ Unlike the reference cases cited by the Defendant, it is difficult to regard the period during which the Plaintiff subscribed to multiple insurance as a short-term subscription as near nine years.

④ In light of the circumstances leading up to multiple insurances, there is no reason to deem that the Plaintiff’s experience as an insurance solicitor or an insurance counselor is unreasonable, and rather, there is a possibility that the Plaintiff spawn the need for an insurance policy in light of experience.

⑤ An insurance company that has paid a large amount of insurance proceeds out of the insurance subscribed to the Plaintiff has Korea non-life insurance (payment of KRW 21,150,000), and the above life insurance does not raise any particular objection to the Plaintiff.

6. Most of all, the instant insurance and multiple insurance contracts subscribed to by the Plaintiff are not fixed-amount compensation insurance and loss compensation insurance that requires the payment of the prescribed amount if the insured event occurs without relation to double subscription, and the insured's act of receiving duplicate compensation does not have any legal problem. The instant insurance itself was designed in consideration of the possibility of multiple insurance coverages by the insured.

Therefore, this part of the defendant's defense is without merit.

D. Where the Plaintiff received insurance proceeds, the receipt of insurance proceeds was in violation of public order and good morals (Article 103 of the Civil Act), and whether the Plaintiff’s intentional occurrence of an insurance accident (Article 659 of the Commercial Act), even where the Plaintiff did not have caused an insurance accident due to unnecessary hospitalization (determination as to a counterclaim claim)

As a counterclaim, the defendant asserts that the insurance contract of this case was concluded for the purpose of unfairly acquiring the insurance proceeds, and thus is null and void pursuant to Article 103 of the Civil Act, so it cannot be viewed that the insurance contract of this case violates Article 103 of the Civil Act. Therefore, this part of the counterclaim is without merit.

Next, the defendant asserts that the plaintiff received insurance proceeds from hospitalization even though he did not suffer an insurance accident after being hospitalized for a long time, despite the fact that the plaintiff suffered a minor injury that is not required to receive hospitalized treatment or sufficient disease only due to commuting treatment. This is a case intentionally attributable to the policyholder, the insured, or the beneficiary, as stipulated under Article 659 of the Commercial Act and Article 17 of the General Terms and Conditions of the Insurance Contract of this case, and thus, the plaintiff received insurance proceeds equivalent to the claim for the counterclaim even though there is no legal ground

If the purport of the entire pleadings is added to each of the statements in Eul evidence Nos. 4 through 17 (including additional numbers), there is no dispute between the parties that the defendant paid insurance proceeds of 61,200,000 won to the plaintiff from January 31, 2008 to February 14, 2013. Meanwhile, even according to the evidence above, in examining the contents of the insurance proceeds received by the plaintiff, not only the expenses for hospitalization of diseases, but also the expenses for women's exclusive disease, 16 diseases, cancer diagnosis, and charnel video treatment, but also the ratio of the insurance proceeds paid to the expenses for hospitalization of diseases among the total insurance proceeds paid. In light of the fact that the insurance proceeds received by the plaintiff were sufficiently verified at the time of payment, and there is no evidence that the plaintiff intentionally caused or caused any fraudulent insurance accident in the course of the plaintiff's claim.

4. Conclusion

Therefore, the defendant is obligated to pay to the plaintiff 20,220,000 won with 20% interest per annum under the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the day following the delivery date of the complaint of this case to the day of full payment. Thus, the plaintiff's claim of this case is justified, and the defendant's counterclaim is dismissed as it is without merit. It is so decided as per Disposition.

Judges Kim Tae-woo

A person shall be appointed.