Plaintiff (Attorney Lee Chang-soo, et al., Counsel for plaintiff-appellant)

Hyundai Marine Fire Insurance Co., Ltd. (Attorney Park Sung-won et al., Counsel for the plaintiff-appellant)

July 17, 2013

Daegu District Court Decision 2012Da3561 Decided February 6, 2013

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The defendant shall pay to the plaintiff 24,697,126 won with 20% interest per annum from the day after the delivery of a copy of the complaint of this case to the day of complete payment.

2. Purport of appeal

The same shall apply to the order.

1. Facts of recognition;

The following facts may be recognized by taking into account the overall purport of the pleadings in Gap evidence Nos. 1 through 8, Eul evidence Nos. 1 through 3 (including branch numbers).

A. On December 12, 2006, the Plaintiff entered into an insurance contract between the Defendant and the Plaintiff, the insured, the deceased non-party 1 (the non-party in the judgment of the Supreme Court), and the beneficiary as a statutory heir of the insured (hereinafter “instant insurance contract”). At the time of entering into the instant insurance contract, the deceased non-party 1’s occupation was a university student (class 1).

B. On May 20, 2012, the deceased non-party 1 driven a salary class III (vehicle number omitted) around 05:32 on May 20, 2012, while entering the Daegu Dong-dong New-dong Busan-gu Busan-do Busan-do Office located at 92.13km (Dong Daegu-gu Office) located in the Busan-gu Busan-do Busan-do Busan-si Office (hereinafter referred to as the “instant insurance accident”). At the time of the instant insurance accident, the deceased was killed for the shock (hereinafter referred to as the “instant insurance accident”). At the time of the instant insurance accident, the deceased did not notify the Defendant of the change of the above occupation.

C. On June 4, 2012, the Plaintiff filed a claim for the payment of insurance proceeds with the Defendant under the instant insurance contract. The Defendant requested the Defendant to assess the instant insurance accident to the Maritime Fire Special Adjustment Co., Ltd., and Nonparty 2 submitted an interim report to the Defendant on August 1, 2012 after investigating the interview with the persons involved in the instant accident. The said interim report is the “○○ (Broadcast Equipment Dial Equipment Dial Equipment Dials) representative” at the time of the instant accident, and the background leading up to the change of the deceased Nonparty 1’s occupation was investigated.

D. On August 13, 2012, the Defendant notified the Plaintiff of the fact that, under Article 25(1) of the General Terms and Conditions of the instant insurance contract (hereinafter “instant Terms and Conditions”), the Plaintiff or the deceased Nonparty 1 did not perform the above obligation without delay, despite having immediately notified the Defendant of the change in the occupation of the insured. However, the Defendant notified the Plaintiff of the fact that the instant insurance contract was terminated and the insurance amount was reduced and paid pursuant to Article 26 of the instant Terms and Conditions and that the payment was reached around that time.

E. On August 21, 2012, the Defendant paid KRW 27,831,910 reduced by KRW 24,697,126 as insurance money to the deceased non-party 3 (son-child), the plaintiff (son-child), and the non-party 4 (spouse) who is the legal inheritor of the deceased non-party 1. On August 21, 2012, the non-party 3 and the non-party 4 transferred the right to claim insurance money based on the insurance contract of this case to the Plaintiff

E. The main contents of the instant general terms of insurance are as follows.

Article 25 (Duty to Notify After Contract)

(1) Where the insured changes his/her occupation or duties (including where a self-employed driver changes his/her occupation or duties as a driver for business) or uses a two-wheeled motor vehicle or motor bicycle directly after concluding a contract, the contractor or the insured shall promptly inform the company in writing and obtain confirmation from the insurance policy.

2. Where the risk has decreased pursuant to paragraph (1), the defendant shall return the difference insurance premium, and where the risk has increased, he/she may request or terminate the contract within one month from the date of receipt of notice.

3. If the contractor neglects to pay the premium upon the defendant's request in accordance with the notification under paragraph (1), the defendant shall pay the premium at the rate applied after the change of occupation or duty of the premium rate applied before the change of occupation or duty (hereinafter referred to as "pre-revision rate") (hereinafter referred to as "after change"): Provided, That this shall not apply to any damage caused by an accident unrelated to the changed occupation or duty.

(4) Where the contractor or the insured fails to notify the company of the change of occupation or duty, if the rate after the change is higher than the rate before the change, the company shall notify the contractor or the insured in writing that he/she will be compensated under paragraph (3) within one month from the date on which it becomes aware of such fact, and shall pay

Article 26 (Effect of Violation of Obligation to Notify)

1. The defendant may terminate this contract, regardless of the occurrence of damages, in the following cases:

2. Where he/she fails to perform the duty to notify after concluding a contract prescribed in Article 25 (1) with respect to an increase in risk;

(2) Notwithstanding paragraph (1) 1, the defendant may not terminate the contract in any of the following cases:

2. When one or more months have passed since the defendant became aware of such fact, or when two years (one year in the case of an insured person who has undergone medical examination) have passed since the date when he/she became aware of such fact, or since the date when he/she

(5) Where the termination of a contract pursuant to the provisions of paragraph (1) 2 is caused after the occurrence of such damage, the loss shall be covered by compensating for such damage pursuant to the provisions of Article 25 (3) or (4).

2. Summary of the plaintiff's assertion

The defendant paid insurance money to the plaintiff on the ground that he did not perform his duty to inform the plaintiff of his claim for insurance money after the contract was terminated and reduced. Although Articles 25 and 26 of the terms and conditions of this case fall under the important contents of the insurance contract and are subject to the duty to explain under Article 3 (2) of the Act on the Regulation of Terms and Conditions, the plaintiff et al. did not have any explanation from the defendant at the time of entering into the insurance contract of this case as to Articles 25 and 26 of the terms and conditions of this case. Thus, the defendant asserted the contents of Articles 25 and 26 of the terms and conditions of this case as the contents of the insurance contract of this case, and thus, cannot terminate the insurance contract of this case and reduce the insurance money. Even if the contents of the above terms and conditions are included in the insurance contract of this case, it is reasonable to deem that the defendant knew that he had made a change in the occupation when he claimed insurance money with the deceased non-party 1's occupation, the defendant has expressed its intent to cancel and terminate the insurance contract of this case.

3. Determination

A. Determination as to the duty of notification under Article 652 of the Commercial Act or the duty of notification after the conclusion of the contract of this case

First, with respect to the Plaintiff’s duty to notify the contract of this case under Article 652 of the Commercial Act or the breach of such duty, if the policyholder or the insured knew of the fact that the risk of the occurrence of an accident has been significantly changed or increased during the insurance period, without delay, the insurer may cancel the insurance contract within one month from the date of becoming aware of such fact. Here, “the fact that the risk of an accident has been significantly changed or increased” as provided for in the subject matter of the duty to notify refers to the fact that the insurer did not conclude the insurance contract or that at least the premium was not insured at the time of the conclusion of the insurance contract, if there was a significant change or increase in the risk at the time of the change or increase in the risk, the insurer would have been aware of the fact that the insured would not have concluded the insurance contract of this case or that the insured would not have subscribed to the insurance premium of this case at least 200,000,0000,000 won, which would have been clearly changed from the student’s status (or student) who did not engage in the insurance contract of this case.

However, as the occupation of the deceased non-party 1 was changed after the conclusion of the insurance contract of this case, the plaintiff or the deceased non-party 1 did not notify the defendant of the obligation to notify it without delay. Thus, the plaintiff or the deceased violated the obligation to notify the contract of this case under Article 652 of the Commercial Act or the obligation to notify the contract of this case after the contract of this case.

B. Whether the insurance contract of this case complies with the duty of explanation and explanation

In general, when concluding an insurance contract, the insurer and the persons engaged in the conclusion or solicitation of the insurance contract are obliged to clarify and explain the important contents of the insurance contract, such as the content of the insurance product, the insurance premium rate system, changes in the entries in the insurance subscription form, etc. which are contained in the insurance contract, so if the insurer concludes the insurance contract in violation of such duty to clarify and explain the terms and conditions, it cannot be asserted as the content of the insurance contract (see, e.g., Supreme Court Decisions 91Da31883, Mar. 10, 1992; 95Da53546, Mar. 8, 1996; 95Da45873, Sept. 9, 197). Thus, it is acknowledged that the insurer’s explicit and duty to explain and explain the terms and conditions are to avoid disadvantage that the policyholder would not have any knowledge of important matters of the terms and conditions, and thus, it is not possible for the policyholder to explain and explain such matters as are within 197 years of general terms and conditions.

However, even if the contract of this case provides that the insured has a duty to inform the plaintiff company without delay when the insured changed his occupation or duty after entering into an insurance contract of this case, it constitutes "the fact that the risk of an accident is significantly changed or increased" under Article 652 (1) of the Commercial Act. The occupation of the insured in non-life insurance is not only an important factor to determine the possibility of an accident, but also an important factor to determine the increase or decrease of premium rates accordingly. Thus, it was sufficiently foreseeable that the policyholder or the insured has a duty to notify the insurer when the work of the insured is changed. Thus, the terms and conditions of the above duty to notify after the contract of this case fall under the provisions of Article 652 of the Commercial Act on the duty to inform the insurer of the duty to inform already set in the Article 652 of the Commercial Act on the duty to inform it, or because the policyholder could have sufficiently predicted it without a separate explanation because it falls under the provisions on the duty to inform the driver insurance specifically because it was common and common in transactions, it cannot be viewed that the insurer is an insurer after the violation of the duty to explain of this case.

C. Whether the defendant's right to terminate the contract is legitimate

The purpose of the general terms and conditions of non-life insurance stipulating that the time when a policyholder fails to immediately notify the insurer of such fact despite significant increase in risks after the contract, and where the insurer is unable to terminate the contract when one month elapses from the date when the insurer becomes aware of such fact, this is to prevent the insurer from being in an unstable position by continuing to maintain the state of failure to determine whether to terminate the contract at any time, despite the existence of the cause for the termination of the contract, and to prevent the policyholder from being in an unstable position. The starting point for exercising the right to terminate the contract is not the time when the insurer becomes aware of the occurrence of risks after the contract, but the date when the policyholder becomes aware of the failure of the insurer to perform the duty to notify as above (see Supreme Court Decision 201Da23743, 23750, Jul. 28, 201). According to each of the above evidence No. 2-7 and No. 8, each of the above statements stated “the Plaintiff’s request for termination” as “the Plaintiff’s occupational engineer at the time of the contract was lawfully 20,”.

D. Sub-determination

Therefore, as long as the Defendant’s termination of the insurance contract of this case on the ground of its violation of the duty to notify the above contract after the conclusion of the contract, it is justifiable to take measures to reduce the amount of insurance money to be paid by the Defendant to the Plaintiff upon the change of the rate after the change of the rate pursuant to Articles 26(5), 25(3), and 25(4) of the terms and conditions of this case. Therefore, the Plaintiff’s assertion that is premised on the validity of the above measure is

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is unfair, so the plaintiff's claim is dismissed upon receiving the defendant's appeal, and it is so decided as per Disposition.

[Attachment Form of Insurance Contract omitted]

Judges Kim Jong-sung (Presiding Judge)