Plaintiff (Attorney Ahn Jae-sik, Counsel for plaintiff-appellant)

Korea Life Insurance Co., Ltd. (Attorney Jin-si, Counsel for defendant-appellant)

August 26, 2004

Ulsan District Court Decision 2002Gahap1051 Delivered on December 24, 2003

1. The plaintiff's appeal is dismissed.

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

Purport of claim and appeal

The judgment of the first instance shall be revoked. The defendant shall pay to the plaintiff 151,250,000 won with 20% interest per annum from the day following the delivery of a copy of the complaint to the day of full payment.

1. Nullity of an insurance contract;

(a) Facts of recognition;

The following facts may be acknowledged either in dispute between the parties or in full view of the whole purport of pleadings as a result of each written appraisal of Gap evidence 1-1, 2-2, Gap evidence 1-2, 2-2, 3-2, 1-3, 7-1 through 6, 8-13, 1-2, 2-2, 3-3, 3-8, 3-1, 3-2, 3-1, 3-2, 3-2, 1-3, 3-2, 1-2, 1-3, 3-2, 1-3, 3-2, 1-3, 1-3-2, 1-2, 1-

(1) Relation between the plaintiff, the defendant, etc.

The plaintiff is the deceased non-party 1 and the non-party 2 (the marriage on November 16, 1996 but the divorce on July 26, 2001). The defendant is a company for the purpose of life insurance business, etc., and the non-party 2 works as the defendant's insurance solicitor from April 10, 1997.

(2) Conclusion and content of the insurance contract

(A) On July 14, 1997, Nonparty 2 entered into a safety insurance contract with the Defendant ( Nonparty 3, the director of the Ulsan Branch Office), with the following content: C. K safety insurance contract (including subsidiary type, special agreement on accident security, special agreement on accident security, and special agreement on medical security).

1) Policyholders: Nonparty 2

2) Insured: non-party 1 and non-party 2 of the main insured;

3) Insurance period: From July 14, 1997 to July 14, 2017

4) Beneficiary: Nonparty 2 at the time of maturity or retirement, Nonparty 1 at the time of hospitalization or injury, and statutory inheritor at the time of death.

(v) grounds for and amount of insurance proceeds;

(1) Death insurance proceeds shall be concluded.

When the insured has died on a holiday as a direct cause, KRW 150 million, and KRW 100 million, including the day when the insured has died due to a traffic accident, and KRW 2 million,000,000 each year, including the day when the cause for payment occurred when the insured has died due to a direct cause other than the cancer, over-the-counter-related specific disease, or traffic accident.

(2) Emergency treatment funds (main contract)

50,000 won when the insured is hospitalized for at least four consecutive days for the direct purpose of treatment due to a traffic accident on a holiday;

(3) Income-guaranteed benefits.

When the insured of the State is hospitalized for at least 31 days continuously for the direct purpose of the treatment due to a disaster, 30,000 won per day exceeding 30 days;

(4) Hospitalization's benefits.

When the insured of the State is hospitalized for at least four consecutive days for the direct purpose of the treatment due to a disease or disaster, 10,00 won per day exceeding three days;

6) The insurance clauses stipulate that an insurance contract shall be null and void if the insured’s written consent is not obtained by the time of conclusion of the contract that provides for the death of another person as the cause for the payment of insurance proceeds, and the accident classification table of attached Table A of the insurance clauses provides that any contingent external accident (if a person who has a disease or physical characteristics and is caused by a minor external factor or whose symptoms are worse, the minor external factor shall not be considered as an contingent external accident) shall not be considered as one of the traffic accidents in the attached Table B. The traffic disaster classification table of the attached Table B provides that the insured’s unexpected accident occurred while he/she is on board a transportation agency in operation.

(B) Meanwhile, at the time of the conclusion of the above insurance contract, Nonparty 1 did not have been present, and accordingly, Nonparty 1 did not sign the subscription form (No. 1) and the subscription form for insurance policy (No. 2-2) with the prime insured column, and Nonparty 2 signed Nonparty 1.

(3) Payment of insurance money prior to the occurrence of the instant accident

The non-party 1 suffered injury, such as brain-dead, etc., due to a traffic accident that occurred on August 22, 1997, and received hospitalized treatment from September 3, 1997 to December 19, 197, and on February 6, 1998, received 5.17 million won insurance money from the defendant under the above insurance contract.

(4) Occurrence of the instant accident and payment of insurance proceeds

(A) On January 1, 2002, at around 05:15, 2002, Nonparty 1, who was a public holiday, driven a hyd and small-sized cargo vehicle (number omitted) in Busan 80C, and operated on the road to Ulsan-dong, Nam-gu, Ulsan-gu, Busan-do, to the mountain basin, and died due to cerebral damage caused by cerebral blood transfusion on February 24, 2002, when Nonparty 1 was stopped on the back of the bus No. 71 (number omitted) owned by the non-party 333 passenger company, who was parked, and was sent to Ulsan-do and was hospitalized for 55 days.

(B) On March 18, 2002, the Plaintiff received KRW 12,296,186 in total, and additional charges for delay in the admission amount and KRW 523,291 in total, KRW 14,819,477 in the amount of KRW 12,29,47 in one minute of the insurance proceeds for the death of a specific disease, which are paid in 10 million by the Defendant over 2 million, and KRW 18,000 in the remainder 9 minutes in nine instances.

B. According to the above facts, the above insurance contract is null and void in accordance with Article 731 (1) of the Commercial Act and the above insurance terms and conditions, since the non-party 1, the main insured, did not consent in writing until the conclusion of the above insurance contract, barring special circumstances, as an insurance contract covering the death of another person as an

2. Judgment on the plaintiff's assertion

A. The assertion

(1) Upon entering into the above insurance contract, the Plaintiff signed on behalf of Nonparty 1 on behalf of Nonparty 1 with the consent of Nonparty 1, and thus, the above insurance contract is valid.

(2) Even if Nonparty 1’s written consent was not given at the time of the conclusion of the above insurance contract, Nonparty 1 confirmed the process of receiving the insurance money of KRW 517,00,000 from the Defendant’s point of Ulsan on the following day of the conclusion of the insurance contract and receiving the insurance money at the Defendant’s point of Ulsan on February 6, 1998, with Nonparty 2’s signature recognizing it as one’s own consent.

(3) In addition, the Defendant received the insurance premium for about four years and six months, and trust the validity of the above insurance contract in the Plaintiff’s side. Although the Defendant confirmed whether Nonparty 1’s signature was made on February 6, 1998, and paid the insurance money, the Plaintiff claimed the insurance money due to the instant accident, and claiming that the above insurance contract is null and void is contrary to the good faith principle or the good faith doctrine.

(4) Thus, since Non-party 1 died on a holiday from January 1, 2002 to February 24, 2002 after being hospitalized for 55 days, the defendant is obligated to pay insurance proceeds of KRW 150,000,000,000,000,000,000,000,000,000,000,000 won for death benefit, and KRW 750,000,00,000,000 (= KRW 30,00,000,000,000).

B. Determination

(1) According to Article 731(1) of the Commercial Act, 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, which is a mandatory provision and thus null and void of the contract concluded in violation of this provision (see Supreme Court Decision 96Da37084, Nov. 22, 1996). The purpose of the provision that the insured person shall obtain consent in writing at the time of the conclusion of the insurance contract is to eliminate the dispute by clarifying the time and method of the consent. Thus, the consent of the other person who is the insured person shall be obtained in writing individually (see Supreme Court Decision 2003Da24451, Jul. 22, 2003). Thus, as seen earlier, although Nonparty 2 signed the other person who is the principal insured, as alleged by the plaintiff, it cannot be deemed that Nonparty 1 consented in writing, and there is no evidence to acknowledge that Nonparty 1 consented otherwise in writing.

In addition, since the time when the insured has to express his/her consent in writing in an insurance contract which covers the death of another person as an insured event is until the conclusion of the insurance contract, even if the insurance contract is concluded without the written consent of the insured and the insured is ratified ex post facto, the insurance contract cannot be deemed valid retroactively or retroactively from

In addition, the legislative intent of Article 731(1) of the Commercial Act is to exclude the risk of infringement of public order and good morals by taking the death of another person as the condition of the so-called gambling contract without the consent of the victim, in addition to the risk of gambling insurance and the risk of murder of the insured. Thus, if a person who entered into an insurance contract covering another person's death as an insured event without the consent of the insured in violation of Article 731(1) of the Commercial Act rejects the claim of invalidity on the ground that it is an exercise of a right contrary to the principle of good faith or the principle of good faith, it would result in the complete elimination of such legislative intent, and barring special circumstances, such assertion cannot be deemed as contrary to the principle of good faith or the principle of good faith (see, e.g., Supreme Court Decisions 96Da37084, Oct. 8, 199; 98Da24563, 24570, Oct. 8, 1999).

(2) Even if the above insurance contract is effective, traffic accidents stipulated in the insurance contract refer to traffic accidents that occur due to unexpected causes (e.g., depression) and traffic accidents that occur only due to internal causes such as physical diseases, etc. of the insured and that occur only to the extent that ordinary accidents cannot be avoided (i.e., e., the external causes of the accident). (See Supreme Court Decision 2003Da35215, 3522, Nov. 28, 2003; Supreme Court Decision 2001Da27579, Aug. 21, 2001).

Although Nonparty 1’s death was caused by such traffic accident, it is insufficient to recognize it only by the descriptions of health stand, A4, A5, and A7 evidence, and there is no other evidence to acknowledge it otherwise. Rather, in full view of the evidence employed earlier, evidence Nos. 4-1, 2, 5-5, and E-6, the instant accident was caused by Nonparty 1’s receipt of the said bus which was stopped on the road, and the damage to the said bus was merely a partial damage to the parts of the 1.4.8 billion won due to the repair cost, and Nonparty 1 was merely driven by drinking alcohol not later than 4.4 days from the new wall on the date of the instant accident, and there is no other evidence to acknowledge that the instant accident was caused by the cerebral cerebral typhe in the process of causing the death of Nonparty 1’s typheculic tymosis at the time of the instant accident, and there was no special circumstance to recognize that the instant accident was caused by the cerebral tymosis.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit, and the judgment of the court of first instance is just as it is concluded, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.

Judges Park Heung-dae (Presiding Judge) Kim Dong-ho