Plaintiff 1 and four others (Law Firm Light-Jon Law Office, Attorneys Kim Yong-hoon et al., Counsel for the plaintiff-appellant)

Hyundai Marine Fire Insurance Co., Ltd. (Law Firm Seoman, Attorney Han-won, Counsel for the plaintiff-appellant)

January 15, 2014

Gwangju District Court Decision 2012Kadan1105 Decided August 13, 2013

1. All appeals filed by the plaintiffs are dismissed.

2. The costs of appeal are assessed against the Plaintiffs.

The judgment of the first instance shall be revoked. The defendant shall pay to the plaintiff 1 the amount of KRW 27,272,727 and each of the remaining plaintiffs 18,181,818 as well as 5% per annum from July 17, 2011 to the delivery date of the complaint of this case and 20% per annum from the next day to the day of full payment.

1. Basic facts

A. Nonparty 2 was in internal relations with Nonparty 1, but Nonparty 3, who was his father, concluded an insurance contract on behalf of Nonparty 2 on December 29, 2009, via Nonparty 4, who was an insurance solicitor belonging to the Defendant’s insurance agency, Inc., on behalf of Nonparty 2 (hereinafter “instant insurance contract”).

Insurance Name: Undividend Lone Star Lone Star integrated Insurance

Contract number: (Contract Number omitted)

Policy Holder: Nonparty 2

Insurance period: From December 29, 2009 to December 29, 2050

Insured: Nonparty 1 (the resident registration number omitted, Nonparty 1 is the second person of Nonparty 1).

Beneficiary: Legal inheritor

Beneficiary: Nonparty 2

B. According to the instant insurance contract, in the event that the insured dies due to an injury during the insurance period, the Defendant is obliged to pay KRW 100,000 to the statutory inheritor in accordance with the basic contract and the additional security agreement on the occurrence of an injury after death in general.

C. At the time of entering into the instant insurance contract, the contractor’s signature in the insurance subscription form was written by Nonparty 3, and the Defendant did not obtain a separate written consent from Nonparty 1.

D. At around 19:45 on February 9, 201, Nonparty 1 was addicted to the Carbon Sinks and died (hereinafter referred to as the “accident in this case”) when he was divingd under the condition of heating at the inside of the residence located in the area of the Nam-gun, Chungcheongnam-do, Seoul, and the ( Address omitted).

E. Plaintiff 1 is Nonparty 1’s wife, and the rest of the Plaintiffs are legal inheritors as Nonparty 1’s children.

F. Although the Plaintiffs claimed insurance money against the Defendant on the ground that the instant insurance contract was concluded without Nonparty 1’s written consent, the Defendant rejected the payment of insurance money on the ground that the instant insurance contract was null and void.

[Ground of Recognition] Facts without dispute, Gap evidence 1, 4 through 9, Eul evidence 1 to 3 (including provisional number), the purport of the whole pleadings

2. Judgment on the main claim

A. The plaintiffs' assertion

Since Nonparty 3 delegated Nonparty 1 with the right to written consent to the insurance contract of this case to Nonparty 1 and represented or represented Nonparty 1’s signature, the insurance contract of this case is valid, and therefore, the Defendant is liable to pay the insurance money due to the death of Nonparty 1 to the Plaintiffs who are the beneficiary.

B. Determination

The provision of Article 731 (1) of the Commercial Act that provides that an insurance contract which covers the death of another person as an insured event shall obtain the written consent of the other person at the time of the conclusion of the insurance contract is a compulsory provision prepared to eliminate the risk of gambling insurance, the risk of murder of the insured, and the risk of infringement on public order and good morals, and thus, the insurance contract in violation is null and void (see Supreme Court Decision 96Da37084 delivered on November 22, 1996, etc.). At the time of the conclusion of the insurance contract of this case, Nonparty 1 did not directly sign the insured’s own signature column, and Nonparty 3 signed on behalf of the other person, there is no evidence to recognize that the non-party 3 was individually granted the right to written consent of the insurance contract of this case and individually granted it. Accordingly, the insurance contract of this case is null and void since the insurance contract of this case is concluded without the written consent of the insured, the plaintiffs’ claim

3. Determination on the conjunctive claim

A. The plaintiffs' assertion

At the time of the conclusion of the instant insurance contract, Nonparty 4, the insurance solicitor of the Defendant, should explain the necessity of Nonparty 1’s written consent on behalf of the policyholder to Nonparty 3, the insured, but failed to perform it. Nonparty 3 knew that Nonparty 3 signed on the part of Nonparty 1, and did not stop it. Accordingly, the instant insurance contract became null and void on the wind, and thereby, the Plaintiffs’ claim for the payment of the insurance money was infringed. Accordingly, the Defendant asserted that the Defendant is liable for damages suffered by the Plaintiffs, the beneficiary, pursuant to Article 102(1) of the Insurance Business Act or the legal principles of employer liability under Article 756 of the Civil Act. In addition, in the event the instant insurance contract becomes null and void, the Defendant gains a substantial profit of the insurance money without any legal grounds, and the Plaintiffs suffered the same amount as the same, and thus, the above insurance money should be returned as unjust enrichment.

(b) Aboard of liability under Article 102 (1) of the Insurance Business Act;

Article 102(1) of the Insurance Business Act provides that "the insurance company shall be liable for any damage inflicted on the policyholder by its executives and employees, insurance solicitors, or insurance agencies (including insurance solicitors belonging to the insurance agencies) while soliciting the insurance, and in this case, comprehensively taking account of the overall purport of the pleadings in each of the statements No. 8-1, No. 2, 9, and No. 3-1, No. 2, and No. 3-2, the whole purport of the pleadings, at the time of entering into the insurance contract of this case, Nonparty 4, who is an insurance solicitor belonging to the defendant insurance agency, was aware of the signing of the name of the insured column on behalf of Nonparty 1, but was not prevented. However, the liability for damages under Article 102(1) of the Insurance Business Act may be claimed by Nonparty 2, the policyholder, and the beneficiary, may not be held liable directly against the defendant under Article 102(1) of the Insurance Business Act. Therefore, the plaintiffs' assertion in this part is without merit.

(c) Assumption of default liability or employer liability;

The Insurance Business Act distinguishess a policyholder, the insured, and the person entitled to receive insurance proceeds. The insurance contract of this case is not a beneficiary at the time of the occurrence of an insurance accident caused by the death, but an insurance contract of this case for a third party. Since the contract for the third party is a contract between a summary and the abortion to promise a third party to provide a certain amount of benefits, and thus a third party has the right to claim the payment directly against the abortion, the third party cannot claim compensation for damages due to a tort committed by the abortion, unless there are special circumstances (see Supreme Court Decision 66Da674 delivered on June 21, 196). Thus, this part of the claim is without merit, provided that the subject of the above claim is the plaintiffs.

D. Whether a claim for return of unjust enrichment is filed

As long as the insurance contract of this case is null and void, it is difficult to view that the plaintiffs suffered considerable loss in the amount of insurance proceeds, and even if the defendant obtained profits without any legal ground, it is not equivalent to the insurance proceeds invalidated under the insurance contract of this case, but equivalent to the insurance premiums paid. Since there is no evidence to prove that the plaintiffs paid the insurance premiums to the defendant under the insurance contract of this case, this part of the argument is without merit without

4. Conclusion

Therefore, the plaintiffs' claim of this case shall be dismissed in its entirety as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as it is without merit, and it is so decided as per Disposition.

Judges Song Jae-dae (Presiding Judge)