(영문) 서울중앙지방법원 2019.6.14. 선고 2018가합547304 판결

1. The defendant shall pay to the plaintiff A 128,571,428 won, the amount of 85,714,285 won, each of which shall be 6% per annum from April 6, 2018 to July 31, 2018, and 15% per annum from the next day to the date of full payment.

2. The costs of the lawsuit are assessed against the defendant.

3. Paragraph 1 can be provisionally executed.

Purport of claim

The same as the order (Provided, That "each 85,714,286 won" is clear that it is a clerical error, so it shall be considered as "85,714,285 won", respectively.

Reasons

1. Basic facts

A. The Plaintiff A is the wife of the deceased E (hereinafter referred to as “the deceased”), and the Plaintiff B and C are the co-inheritors of the deceased. On July 31, 2017, prior to the death of the deceased, the Plaintiff A entered into the F basic franchise insurance contract (hereinafter referred to as “the insurance contract of this case”) with the Defendant as the insured on the following terms:

• Insured: statutory heir and beneficiary: From July 31, 2017 to July 31, 2065, 2017, the term of insurance coverage; security-basic contract (injury, Death and injury caused by death): payment of insurance coverage (100 million won) in the event of death or injury caused by an accident of injury; payment of insurance coverage (200 million won) in the selective contract; payment of insurance coverage (200 million won) in the event of death due to injury.

B. At the time of the conclusion of the instant insurance contract, the Deceased expressed each choice on the answer, "I will see whether I will or not I will drive as of October," and "I will see whether I will or not (I will not indicate on farming machinery)", "I will or both side or side or concurrently operate, or engage in seasonal work (hereinafter referred to as "side work, etc.") ?" in the answer, "I will not indicate any choice on the answer," and deliver to G.

C. On December 9, 2017, around 15:15:15, the deceased driving a H Twitter (hereinafter referred to as “the instant Twitter”) and driving the IF at the front side of the JJ, and the deceased died due to the injury of the ples and other detailed unknown damages, which occurred on the day before he arrives at the hospital, falling below 4 meters on the right-hand side of the progress direction and fall into the instant Twitter (hereinafter referred to as “the instant accident”).

D. On April 2, 2018, the Plaintiffs filed a claim against the Defendant for the payment of insurance proceeds on the ground that the insured event under the instant insurance contract occurred as the Deceased died of the instant accident.

E. On May 17, 2018, the Defendant sent to the Plaintiff the following: (a) on May 17, 2018, it was confirmed that the Defendant respondeded that “the Deceased is not engaged in the operation of farming machinery and ancillary business, etc. at the time of the application for the instant insurance contract; (b) it constitutes a breach of the duty to notify prior to the contract under Article 17 of the instant ordinary terms and conditions; and (c) it constitutes a breach of the duty to submit evidentiary data if the breach of the contract is different from the fact; but (d) if the Plaintiff did not submit evidentiary data, the instant insurance contract shall be terminated in accordance with Article 19 of the instant ordinary terms and conditions of the insurance contract and Article 651 of the Commercial Act; and (c)

F. On July 6, 2018, the Defendant again sent to the Plaintiff a certificate to the effect that “Inasmuch as the violation of the obligation to notify the above is an important matter that can be terminated of the insurance contract of this case, the Defendant may submit evidentiary data if it is different from the facts, but if the evidentiary data is not submitted, the Defendant’s obligation to pay insurance money is restricted (Immunity) in accordance with Article 19 of the General Terms and Conditions of the Insurance Contract of this case and Article 651 of the Commercial Act.”

G. The main contents of the general terms and conditions and special terms and conditions applicable to the instant insurance contract are as shown in the attached Form.

【Unsatisfied Facts, Gap 1 through 5 evidence, Eul 1 through 3, 6 and 7 evidence (including each number; hereinafter the same shall apply), witness K and G testimony, and the purport of the whole pleadings

2. Summary of the parties' arguments

A. The plaintiffs' assertion

For the following reasons, the defendant is obligated to pay 300 million won of insurance money according to the insurance contract of this case to the plaintiffs, the inheritor of the deceased, according to their shares of inheritance.

1) At the time of the conclusion of the instant insurance contract, the Deceased did not drive the Track, and did not engage in agriculture. At the time of the instant accident, the Deceased temporarily driven the Track-in truck with K’s request, which was the shape of the Deceased at the time of the instant accident. As such, it cannot be said that: (a) the Deceased did not notify the Deceased as to the operation of the farming machine at the time of the conclusion of the instant insurance contract, or that he did not engage in any business such as sub-business, etc.; and (b) the Deceased did not comply with the duty of disclosure stipulated in Article 17 of the General Terms and Conditions of the instant insurance Contract

2) Even if the duties, such as whether the deceased is driving or side business, constitute a matter to be notified to the defendant, it cannot be deemed that there was an intentional or gross negligence on the part of the plaintiff A or the deceased who did not notify such matters to the defendant.

B. Defendant’s assertion

Although the deceased tried before the accident in this case to drive a flat film and tried to assist K to do so, it constitutes a failure to notify the defendant of important matters intentionally or by gross negligence. Furthermore, the defendant terminated the insurance contract in this case by sending a certificate of content as of May 17, 2017 to the effect that the contract in this case should be terminated on the ground of the violation of the duty of disclosure as above pursuant to Articles 17 and 19 of the General Terms and Conditions of the Insurance in this case and Article 651 of the Commercial Act. Thus, the defendant is not obliged to pay insurance money to the plaintiffs under the insurance contract in this case.

3. Determination

A. Provisions and legal principles of the Commercial Act on the duty of disclosure under an insurance contract

1) Article 651 of the Commercial Act provides, “If the policyholder or the insured has failed to notify material facts intentionally or by gross negligence at the time of the insurance contract, or has notified the policyholder or the insured of false facts, the insurer may terminate the contract within one month from the date of becoming aware of such fact or within three years from the date of the conclusion of the contract, except in cases where the insurer knew of such fact or was unaware of such fact due to gross negligence,” and Article 651-2 of the Commercial Act provides, “the matters asked in writing by the insurer shall be presumed to be material facts.” Article 655 of the Commercial Act provides, “ even after the occurrence of the insurance accident, the insurer is not liable for paying the insurance money if it has terminated the contract in accordance with Articles 650, 651, 652 and 653 of the Commercial Act, and the insurer is not liable for paying the insurance money if it proves that the occurrence of the insurance accident clearly changes or increases the risk.”

2) "Important matters" under Article 651 of the Commercial Act, which are required to notify the insurer at the time of the insurance contract, means the standard matters for the insurer to determine whether to enter into the insurance contract or the content of the insurance contract, such as the addition of the premium or special exemption clause, by measuring the occurrence of the insured events and the estimated rate of liability incurred therefrom, and where the insurer objectively knows the fact, it means the matters deemed that the insurer does not enter into the contract, regardless of whether to enter into the contract or at least the same condition, if it is objectively known that the insurer knows the fact, and what amount should be determined objectively in light of the insurance technology. However, the fact that the insurer has no choice but to change depending on the type of the insurance, is presumed to fall under important matters in the insurance contract (Article 651-2 of the Commercial Act), and the document about which the insurer asks in writing may be included in the insurance subscription. If the purport of demanding an answer with respect to certain matters is included, such matters are presumed to be "important matters" under Article 651 of the Commercial Act (see, Mar. 13, 19, 2014, 2014).

In addition, in order for an insurer to terminate an insurance contract on the ground of a violation of the duty of disclosure, it should be proved that the policyholder or the insured was aware of the existence of the duty of disclosure and of the existence of such a matter and that the insurer failed to comply with the duty of disclosure due to its intentional or gross negligence. Here, “serious negligence” refers to the fact that although the insurer was aware of the fact that the existence of the duty of disclosure was to be notified, it was not aware that it was an important fact that the determination of the importance of the fact was erroneous or that the fact was to be notified due to a significant negligence (see, e.g., Supreme Court Decisions 2010Da3863, 38670, Nov. 29, 201; 2009Da10349, 10356, Apr. 14, 2011).

B. Whether the plaintiff A or the deceased has a duty to notify whether he/she was engaged in his/her duties, such as the operation of the deceased's Tracker and the father's operations

1) According to the above legal principles, in relation to whether the defendant asked the deceased in writing and engaged in his/her duties, such as the operation of the deceased who received answer from the deceased, if the defendant knew of such fact, it shall be deemed that he/she has a duty to notify the fact since such fact is an important matter. However, if it is not a fact that may affect the conclusion of the insurance contract or the terms and conditions thereof, it shall not be deemed an important matter under Article 651 of the Commercial Act. Thus, it shall not be deemed that the policyholder or the insured has a duty to notify the fact.

2) 이와 관련하여, 을 4, 5호증의 일부 기재에 의하면, K이 경찰 조사 당시 "평소망인이 자신의 농사일을 도와주었기 때문에 트랙터 운전을 매우 잘 한다."라고 진술한 사실, 손해사정업체 직원이 작성한 문답서에는 "농사일이 바쁠 때 봄, 가을에 일손을 도와줌(1년 기준으로 15~20회), 모판, 곡물 이동시 트랙터 사용", "1년 15~20회 농사일도와줄 때마다 트랙터 동생이 운전함", "20년 이상 트랙터 운전, 사용함"이라는 K의 답변이 기재된 사실은 인정된다.

3) However, considering the following circumstances that can be seen by comprehensively taking account of the aforementioned evidence, evidence Nos. 6 through 16, part of evidence Nos. 4 and 5, and the purport of the entire pleadings, it is difficult to view that the deceased was driving or engaged in agriculture in the form of a track or farming machine at the time of entering into the instant insurance contract, or in the form of a side business, etc., and there is no other evidence to acknowledge otherwise.

① The above written answer also states that K responded to “the deceased as a farmer by 2014, while selling the land.” In fact, the deceased disposes of all the farmland in his/her name in around 2014, and operated “L store, a par value chain store, which is not a bar area where K is a deaf company until May 2016,” and thereafter, it appears that K operated “M store, along with the plaintiff, from the steel source, until the accident occurred.”

(2) For the purpose of viewing it as an ordinary operation of agricultural machinery, a secondary operation, a concurrent operation, or a seasonal operation, it shall be deemed that at least the continuous or regular operation of the agricultural machinery, or an activity continuously or periodically obtaining economic benefits, apart from this activity, has been conducted.

This is also known in the case where Article 18(1) of the General Terms and Conditions of the instant insurance contract provides that "if a self-employed driver changes his occupation or duties to a "business driver" or "in the case of a continuous use of a two-wheeled motor vehicle or motor device bicycle" during the insurance period of the instant insurance contract. However, there is no evidence to deem that the deceased has continuously or regularly driven a film at the time of the conclusion of the instant insurance contract, or that he has acquired economic benefits by continuously or regularly running the agriculture.

③ The Tractor driven by the Deceased was not owned by the Deceased, and the process during which the Deceased was driven by the Track was not a lacor, but was temporarily driven in order to draw the truck, which was in the farm, at the request of K, the deceased. The accident occurred on the way that the Deceased was moving the Tracor to K farm.

④ In this court, the witness K stated in the purport that “the deceased was not driven at least 7 to 8 years from the date of the instant accident as well as from the time of the conclusion of the instant insurance contract, and there was no scambling from 2014 that he disposed of the farmland owned by the deceased, and that the deceased was making a statement at the time of the police investigation that he was well aware that he would be responsible for the occurrence of the instant accident by having the deceased drive the instant fleet, but this stated in a somewhat exaggerated statement about the ability to drive the deceased, and that the part on the frequency and frequency of driving the cambs of the deceased stated in the door-to-written statement to the effect that “the scambling was mistakenly recorded as if the deceased was used by the scambling.”

⑤ 이 사건 보험계약 체결을 중개한 보험설계사인 증인 G도 이 법정에서 "이 사건 보험계약 체결 당시 망인이 트랙터를 운전하는 것을 보거나 들은 사실이 없고, 망인이 농지를 소유하고 있을 때에도 K이 농사를 지었으며, 망인이 농지를 팔고 화천에서 자영업을 할 떄에는 철원에서 차량으로 1시간 30분 거리에 있는 화천에 주로 거주하면서 패스트푸드 체인점 매장을 운영하였기 때문에 농사를 할 수 없었다."는 취지로 진술하였고, 또 "망인이 트랙터를 운전한 사실이 있었다고 하더라도 이 사건 보험계약 체결 여부나 인수 조건에는 별다른 영향을 미치지 못했을 것"이라고도 진술하였다.

6. 15-20 times per year for the deceased’s farming day as described in the above written answer.

Even if they have tried to do so, such circumstance alone seems not to be identical or similar to each other in terms of probability of occurrence of an insurance accident or risk of insurance company's burden of liability, in comparison with those who continuously or regularly engage in agriculture and drive agricultural machinery, such as blackers, etc. to this end.

C. Whether the plaintiff A or the deceased's failure to notify whether the plaintiff A or the deceased has been engaged in the duty, such as the Track drive, and whether there was intention or gross negligence

Even if the deceased was driving or engaged in agriculture in the form of a track at the time of the conclusion of the instant insurance contract, and such fact constitutes an important matter to be notified to the defendant, in light of the following circumstances, the evidence submitted by the defendant alone is insufficient to deem that the plaintiff or the deceased did not know about the existence of the above duty of disclosure or did not know about the importance of the fact to be notified due to substantial negligence, or that it did not know that it was an important fact, and therefore, it cannot be deemed that the plaintiff or the deceased did not know about the existence of the duty of disclosure or that it was gross negligence by the plaintiff or the deceased.

① In view of the fact that the Deceased did not own a farming machine, such as a track before and after the conclusion of the instant insurance contract, and that the Deceased was commuting to and was engaged in his own business as a motor vehicle before the conclusion of the instant insurance contract, and that no special certificate of qualification is required to drive a track and no particular professional technique is deemed necessary, it seems difficult to recognize that the Plaintiff or the Deceased, as at the time of the conclusion of the instant insurance contract, should notify the Defendant of the fact that the Deceased is driving a track.

(2) As seen earlier, even if the Deceased aided to do so, the frequency is limited to 15 to 20 times a year, and it is difficult to readily conclude that the Deceased acquired economic benefits by taking into account the deceased’s punishment.

③ An insurance solicitor G was well aware of the deceased’s occupation, commuting form, etc. as the deceased’s seat, but did not recognize the need to notify the Defendant of whether the deceased was driving agricultural machinery or his side business.

D. Sub-committee

1) Therefore, the Defendant’s claim for termination and exemption of the instant insurance contract on the premise that the Plaintiff A or the Deceased violated the duty of disclosure on important matters is without merit, without further examining other arguments.

2) Therefore, the defendant should pay to the plaintiffs, the deceased's heir, the sum of KRW 300 million insurance proceeds under the insurance contract of this case (i.e., KRW 128,571,428 (i., KRW 300 million x37, less than KRW 22/7) in proportion to their respective shares. Ultimately, the defendant is obligated to pay to the plaintiffs A the amount of KRW 128,571,428 (i.e., KRW 85,714,285 (= KRW 300 million x2/7) in proportion to their respective claims for insurance proceeds from the date on which the plaintiffs received documents claiming insurance proceeds against the defendant (as of April 2, 2018, the defendant did not dispute over the date on which the claims for insurance proceeds are received) to the defendant by 300 million from April 6, 2018 to the date on which a copy of the complaint of this case was delivered to the defendant by 15% of each of the total damages.

4. Conclusion

Therefore, each of the claims of the plaintiffs in this case is reasonable, and it is decided as per Disposition by admitting all of them.