2014Na9970 Collections

Kim 00

Attorney Kim Young-chul, Counsel for the defendant-appellant

Hansung Life Insurance Co., Ltd.

Yeongdeungpo-gu Seoul Metropolitan Government 63-50 (Yindo-dong)

Representative Director 00

Law Firm Whitek, Counsel for the plaintiff-appellant

Attorney Kang Young-chul

Jeonju District Court Decision 2014Ga Office decided September 26, 2014

1072 Judgment

August 24, 2015

September 21, 2015

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the defendant.

Purport of claim and appeal

Purport of claim

The defendant shall pay to the plaintiff KRW 14, 121, 397 and shall pay to the plaintiff full payment from the day after the delivery of the complaint of this case.

By the day, 20% interest per annum shall be paid.

Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Facts of recognition;

A. On July 4, 2013, the Plaintiff filed a lawsuit claiming return of unjust enrichment against Jeonju District Court Branch Kim 00 on the ground of filing a claim against the Plaintiff for restitution of unjust enrichment, and on July 4, 2013, the said court rendered a judgment by paying to the Plaintiff 5% per annum from December 29, 2012 to March 18, 2013, and the amount equivalent to 20% per annum from the next day to the day of full payment. The said judgment became final and conclusive around that time.

B. On December 2, 2013, Kim 00 entered into an insurance contract with the Defendant as listed below.

A person shall be appointed.

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C. On January 13, 2014, the Plaintiff filed an application for a seizure and collection order against money to KRW 24,00,000, among the claims (refluences) against the Defendant (refluences) with the judgment money, etc. at Jeonju District Court 59,803, and 304, including the above judgment money, with the Defendant’s claim. The said court issued a seizure and collection order against the said claim upon the Plaintiff’s application on January 13, 2014, and issued the seizure and collection order against the said claim. The above collection order containing the purport of termination of the said insurance contract was served on the Defendant on January 15, 2014.

D. On January 12, 2014, the Defendant paid KRW 4,682,679 to the Plaintiff on January 12, 2014 at KRW 4,682, and 679 at the cancellation exchange rate related to the insurance listed in the said Table Nos. 1 through 4.

E. On January 15, 2014, the base cancellation refund on January 15, 2014, set forth in No. 5 of the above table (hereinafter “instant insurance”) was KRW 17,353,980.

F. The insurance of this case is composed of the amount calculated by reflecting the performance of the special account as to the amount obtained by deducting the monthly deduction amount from the general account and the special account at the time of the death of the policyholder (risk insurance premium for the month, the maintenance cost after the payment, the minimum amount of the maintenance cost, and the minimum amount of the reserve fund for the pension) in the event the policyholder dies during the insurance period (the second insurance period) after entering into an indemnity contract for receiving the insurance money and the pension contract for receiving the annuity at the same time after the commencement of the pension insurance period (the second insurance period). In the event the policyholder lives within the second insurance period, the amount calculated by multiplying the policyholder's reserve at the time of the commencement of the pension by a certain rate shall be paid as pension in the event the policyholder dies during the first insurance period after investing in the financial product as part of the insurance premium paid by the policyholder.

G. The insurance premium of this case consists of KRW 1,010,000 per savings premium of KRW 821,864, risk insurance premium of KRW 740, and additional premium of KRW 187,396.

[Ground of recognition] The non-contentious facts, Gap evidence Nos. 1, 2, 3-1, 2, 4, and 5-1, 5-2, Eul evidence Nos. 2 and 3, and the purport of the whole pleadings

2. Determination

A. Determination on the cause of the claim

According to the above facts, the defendant is obligated to pay to the plaintiff, a collection right holder of this case, the remaining 14,121,397 won excluding the part of the plaintiff's insurer's insurer's insurer's insurer's insurer's insurer's insurer's insurer's insurer's insurer's insurer's insurer's insurer's insurer's insurer's insurer's insurer's insurer's insurer's insurer's insurer's insurer's insurer's insurer's insurer's insurer's insurer's insurer's damages for delay.

B. Judgment on the defendant's assertion

1) First of all, the Defendant asserts that the instant insurance is prohibited from being seized due to the guarantee insurance, and that the creditor, who received a collection order under Article 6(1)3(a) of the Enforcement Decree of the Civil Execution Act, is also prohibited from seizing the cancellation refund arising from the exercise of the termination right. Thus, the termination of the instant insurance contract by the Plaintiff, the collection right holder, should be prohibited in violation of the purport of the above provision.

However, it is difficult to view the insurance of this case as a guarantee insurance that is prohibited from seizure of the insurance money, and even if the insurance of this case is partially mixed with the nature of the guarantee insurance, the part of the insurance of this case can be seen as partly mixed with the nature of the guarantee insurance.

The termination of the instant insurance cannot be deemed prohibited in light of the fact that the part of the instant insurance is extremely part of the entire insurance. Therefore, the Defendant’s assertion on this part is rejected.

A) “Guaranteed Policy” is an insurance product with the primary purpose of paying insurance proceeds promised to the insured when an insured incident occurs in preparation for any economic risk that may arise in connection with the insured’s life, body, or accident, such as life, injury, disease, and accident. It is an insurance policy that does not exceed the total amount of insurance premiums paid by an insurance company when the insured event is terminated or maturity at the early stage without occurrence of the insured event, and the savings insurance is an insurance product with the primary purpose of providing for money or old age fund. The savings insurance is an insurance product with a maturity of which the amount of refund paid at the time the insured has arrived at the maturity of the insured (the amount of money calculated at a certain interest rate shall be added to the paid-in insurance premium) exceeds the total amount of the paid-in insurance premium. Generally, the insurance contract has the characteristics of guarantee and savings deposit. The amount of the insurance proceeds (the guaranteed insurance portion) paid at the time of the occurrence of the insured event and the savings insurance premium is divided according to this.

B) As part of the insurance premium paid by a policyholder, the instant insurance is a savings insurance with a certain amount added to the reserve in the event a death incident occurs within a certain period from the reserve after deducting the profits or losses incurred from operation and the operating expenses after making an investment in the financial product as part of the insurance premium paid by the policyholder. Since it is the content that a pension is paid based on the reserve after the lapse of the period, it is reasonable to view that it is a savings insurance with a major title to accumulate the paid insurance premium and pay money for old age.

C) Of the instant insurance premium of KRW 1,010, KRW 000, savings premium of KRW 821 and KRW 864, while risk insurance premium of KRW 740 is merely KRW 740.

D) The Plaintiff claimed only a part of the refund money for the cancellation of the instant insurance in accordance with the ratio of savings premium to the insurance premium out of the instant insurance premium.

2) Next, the Defendant asserts that collecting only a part of the instant insurance money is unreasonable in light of the purport of the prohibition of seizure on the insurance coverage.

However, even if the nature of the instant insurance is partially mixed with the nature of the instant insurance, it is unreasonable to prohibit seizure and collection of the entire refund money for cancellation of the instant insurance even though the part is extremely limited to the part of the instant insurance in the entire insurance, it is unfair to restrict the obligee’s rights. Thus, the Plaintiff’s claim for collection of the instant insurance cannot be deemed unreasonable, insofar as the Plaintiff claims the amount of mutual aid corresponding to the guaranteed insurance out of the refund money for cancellation of the instant insurance as its owner. Accordingly, the Defendant’s assertion on this part is rejected.

3. Conclusion

Therefore, the defendant is obligated to pay to the plaintiff the collection amount of KRW 14, 121, 397 and damages for delay calculated at the rate of 20% per annum from April 29, 2014 to the date following the delivery date of the complaint in this case, to the date of full payment. Thus, the plaintiff's claim is reasonable, and this conclusion is reasonable, and the defendant's appeal is dismissed without merit. It is so decided as per Disposition.

Judgment of the presiding judge

Judges Kim Sung-hoon

Judges Jeong-ho