Whether the insurer may cancel the insurance contract on the ground of the false notice of the period of construction or advance payment in the performance (contract) contract or payment contract guarantee insurance contract concluded in relation to the construction contract (affirmative)

In the performance (contract) contract or payment contract guarantee insurance, whether there is a contractor’s default on the payment of an insurance accident subject to an insurance contract should be determined on the basis of the agreed contract amount, construction contents and period of construction, advance payment paid, etc. As such, in such guarantee insurance contract, giving false notice of important matters in the contract with the construction period or advance payment amount, etc. may constitute deception. Therefore, in such a case, the insurer may cancel the insurance contract in accordance with the general principles of the Civil Act.

Articles 109, 110, and 428 of the Civil Act

[Plaintiff-Appellant] Plaintiff 1 and 1165 (Gong15, 1992, 761) (Law No.1992, 199, 1129) decided December 27, 1991

Korea Seafarers Corporation (Attorney Han-sung et al., Counsel for the defendant-appellant)

Korea Guarantee Insurance Co., Ltd. (Attorney Choi Sung-sung et al., Counsel for the defendant-appellant)

Seoul High Court Decision 97Na6591 delivered on October 15, 1997

The part of the lower judgment against the Defendant is reversed. This part of the case is remanded to the Seoul High Court.

The grounds of appeal are examined.

1. On the first ground for appeal

According to the reasoning of the judgment below, the court below found that the defendant's insurance contract was concluded on April 1, 1993 with the non-party 1 corporation (hereinafter "non-party 1") 0 and the non-party 2's insurance contract for the construction of 40,00,000 won and the non-party 2's new construction contract for the non-party 9 and the non-party 9's new construction contract for the non-party 2 with the non-party 9's new construction contract for the non-party 4 and the non-party 9's new construction contract for the non-party 2 with the non-party 9's new construction contract for the non-party 4 and the non-party 9's new construction contract for the non-party 9's new construction contract for the non-party 4 and the non-party 2's new construction contract for the non-party 9's new construction contract for the non-party 4 and the non-party 9's new construction contract for the non-party 9.

In light of the records, the judgment of the court below is justified in finding that the contract of this case was entered into after the conclusion of the first contract and that the contract of this case was entered into at the time of the conclusion of the guarantee insurance contract of this case. In particular, even after the contract of this case, the plaintiff and the non-party company anticipated that the number of stories above the ground level may be five stories due to the cancellation of the designation of the zone for the future construction, and attempted to adjust the construction cost. However, even though the contract of this case was concluded on the premise that the size of the future construction can be expanded, the above fact is not inconsistent with the fact that the contract of this case was concluded effectively. Therefore, the judgment of the court below is not erroneous in violation of the rules of evidence and affected the conclusion of the judgment in finding the facts as pointed out in the grounds of appeal. This part of the grounds of appeal is not acceptable.

2. On the second ground for appeal

In a performance (contract) contract or payment contract guarantee insurance contract, whether a contractor is liable to pay an insurance accident should be determined on the basis of the agreed contract amount, construction contents, period of construction, and advance payment, etc. As such, in such guarantee insurance contract, notifying the contractual matters that are essential to the contract, such as construction period or advance payment, together with construction cost, constitutes deception. Therefore, in such a case, the insurer may cancel the contract in accordance with the general principles of the Civil Act (see Supreme Court Decisions 86Da216, Jun. 9, 1987; 91Da1165, Dec. 27, 1991).

However, according to the reasoning of the judgment below, the court below determined the defendant's defense that the contract of this case was cancelled by falsely notifying the non-party company of the construction period and advance payment, etc. under the contract of this case to the contract of this case. The guarantee insurance contract of this case was concluded with Eul No. 11, stating the advance payment amount of 90,000 won from April 25, 1994 to July 30, 195, and it could not be seen that the advance payment of the contract of this case was made within 0 days from July 25, 1993 to July 30, 194, as long as the contract of this case was entered into with the non-party company, the advance payment of the contract of this case was not made within 0 days before the contract of this case, and it could not be seen that the advance payment of the contract of this case was made within 10 days prior to the execution date of the contract of this case, and it could not be seen that it was more likely that the contract of this case was made within 30 days prior to the construction period.

However, separately from the performance (contract) guarantee insurance and payment guarantee insurance for the construction contract of this case, whether the construction period or advance payment should be determined falls under important matters under the contract. Examining the records, the non-party company's completion of the construction contract of this case from July 30, 1994 to the 2,3 months before the original completion date (record 141), and the Plaintiff's circumstance shows that the construction period was more than one year until July 30, 195 because the rate of validity was 23.59% (record 485 pages) and that the non-party company's non-party company's non-party company's non-party company's non-party company's non-party company's non-party company's non-party company's non-party company's non-party company's non-party company's non-party company's non-party company's non-party company's non-party company's non-party company's non-party company's non-party company's non-party company's non-party company's non-party.

In addition, the record reveals that there is no evidence to view the meaning of advance payment in the first contract between the plaintiff and the non-party company, and the guarantee insurance contract of this case between the non-party company and the defendant, while it can be seen that the meaning of advance payment was used in the meaning of the construction cost that will be paid in advance at the time of entering into the first contract or the contract of this case. In addition, even if the guarantee insurance contract of this case guarantees the return of advance payment to be paid by the time of the completion of the construction of the second contract, as decided by the court below, the advance payment amount already paid is an important matter related to the possibility of performing the repayment of advance payment to be paid in advance. However, even according to the court below acknowledged by the court below, the non-party company already paid 2,00,000,000 won to the non-party company at the time of the first contract, even if it was later paid to the non-party company, the non-party company received the construction of this case after entering into the guarantee insurance contract of this case and notified the construction of advance payment.

Therefore, the court below determined that the act of notifying construction period and advance payment differently from the fact does not constitute deception, on the grounds stated in its reasoning, does not ultimately mislead the legal principles as to deception in the guarantee insurance contract. Therefore, the court below should have determined whether the defendant formed the guarantee insurance contract in this case based on the mistake by the defendant due to such deception. Nevertheless, the above mistake committed by the court below did not affect the judgment. The part pointing this out in the grounds of appeal is with merit.

3. Therefore, the part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Jong-chul (Presiding Justice)