[1] Whether the risk of a fire in a fire insurance policy is presumed (affirmative)

[2] The person who bears the burden of proving the fact of "damage caused by intention or gross negligence of the policyholder or the insured" as stipulated by the reason for exemption under the fire insurance clause (=insurer) and the degree of proof

[3] The intent and method of interpreting the fire insurance clause to the effect that “if the insured, etc. forged or altered documents or evidence concerning claims for insurance, etc., he/she shall lose his/her right to claim insurance,” and the scope of the insurance claim that the insured is deprived of

[4] In a case where a non-life insurance policy sets the subject matter and risk of an insurance, and where the insured and the insured interest are unclear, the standard for determining the insured, and whether the lessee can be deemed as a liability insurance in a case where the fire insurance is concluded by stating himself/herself as the owner of the leased building and internal facilities without clearly mentioning the insured (negative)

[1] In light of the form and purport of the provisions of the Commercial Act and the fire insurance clauses, and the existence of the fire insurance system that allows the insured to promptly recover from the damage caused by a fire by a fire by allowing the insured to pay the prescribed insurance money unless there is any reason for exemption from liability, if a fire occurs in the fire insurance, it shall be presumed that the requirements of friendlyness are met. However, if the insurer proves that the fire was caused by the policyholder or the insured’s intentional act or gross negligence, such presumption shall be deemed to have been reversed.

[2] Where the terms and conditions of the fire insurance contract provide that “the insurer shall not compensate for any loss caused by the intention or gross negligence of the policyholder or the insured,” the insurer shall be responsible to prove the facts constituting the reasons for exemption in order to be exempted from the liability to pay the insurance proceeds. Here, the conviction refers to the degree of conviction of the judge, and such conviction refers to an absolute accuracy that is not likely to oppose, such as the certification of natural science or education, but it refers to a high probability that is likely to be true and doubtful in the ordinary daily life of the ordinary person, and it is insufficient to reach the degree of doubt or prosecution.

[3] The purpose of the fire insurance clause, which provides that "where the contractor or the insured intentionally states any fact different from the fact in the documents concerning the notice of damages or the claim for the insurance money, or where such documents or evidence are forged or altered, the insured shall lose the right to claim the damages, the insured shall lose the right to claim the insurance money." Although the insurer needs to know the cause and situation of the insurance accident in order to determine the liability for compensation, the amount of compensation, and the degree of damages in order to determine the amount of compensation, etc., materials related thereto are most located in the area of controlling and managing the contractor or the insured, there is a high need for the insured to provide accurate information. Accordingly, if the insured claims excessive amount of insurance money in a fraudulent manner contrary to the principle of trust and good faith by forging documents or manipulating evidence against this request, the insured would lose its right to claim the insurance money as sanctions against the insured. However, it would be reasonably necessary to interpret that the insured would be exempt from liability only if it violates the terms and conditions even if it violates the above terms and conditions by strictly interpreting the terms and conditions as it."

[4] In the case of non-life insurance, only the subject matter and risk of the insurance are determined, and where the insured and the insured's interest are unclear, whether the insurance contract is for itself or for others shall be determined in consideration of various circumstances such as the content of the insurance contract and the terms of the contract which the parties concerned serve as the subject matter of the insurance contract, the process and process of the conclusion of the insurance contract, and the practice of the insurance company. In a case where the lessee concludes the fire insurance without clearly mentioning the leased building and its facilities and fixtures, etc. as the owner of the insurance purpose, unless otherwise stipulated, such fire insurance has the nature of the liability insurance to compensate for the damage suffered by the insured as the owner of the property, unless otherwise stipulated.

[1] Articles 659(1) and 683 of the Commercial Act, Article 288 of the Civil Procedure Act / [2] Articles 659(1) and 683 of the Commercial Act, Article 288 of the Civil Procedure Act / [3] Articles 657 and 683 of the Commercial Act, Article 105 of the Civil Act, Articles 5 and 6(2)1 of the Regulation of Standardized Contracts Act / [4] Articles 639, 665, 683, and 719 of the Commercial Act

[2] Supreme Court Decision 2008Da72578, 72585 Decided March 26, 2009 / [3] Supreme Court Decision 2006Da72093 Decided February 22, 2007 (Gong2007Sang, 498) / [3] Supreme Court Decision 2004Da2027, 20234 Decided November 23, 2006 / [4] Supreme Court Decision 2006Da29105 Decided December 27, 2007 / [4] Supreme Court Decision 2002Da33496 Decided January 24, 2003 (Gong203Sang, 714)

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

Defendant (Attorney Jeon Jae-ho, Counsel for defendant-appellant)

Gwangju High Court Decision 2008Na3263, 3270 decided June 26, 2009

The part of the judgment of the court below against the plaintiff (Counterclaim defendant) regarding the main lawsuit and counterclaim is reversed, and that part of the case is remanded to the Gwangju High Court. The remaining appeal by the plaintiff (Counterclaim defendant) and the appeal by the defendant (Counterclaim plaintiff) are dismissed, respectively.

We examine the grounds of appeal.

1. As to the ground of appeal by the Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”)

A. On the first ground for appeal

Article 683 of the Commercial Act provides that "the insurer of the fire insurance contract shall be liable to compensate for the loss caused by fire," and Article 15 of the Clause of the fire insurance contract of this case provides that "the damage caused by fire" shall be referred to as "the damage caused by fire," and Article 16 of the Clause provides that "1. The insured (in the case of a corporation, the director or any other institution executing the duties of the corporation) or the legal representative of the insured, the intentional or gross negligence of the contractor or the legal representative of the insured, the intentional or gross negligence of the contractor or the legal representative of the contractor, or the loss caused intentionally by any other relative or the employer in the same household in order to have the insured

In light of the form and purport of the provisions of the Commercial Act and the terms and conditions as above, and the significance of the existence of the fire insurance system that intends to make the insured pay the prescribed insurance money in the event of a fire to promptly recover from the damage caused by a fire, if a fire occurs in a fire insurance policy, it shall be presumed that the requirements of friendlyness are met, but if the insurer proves that the fire occurred due to the intention or gross negligence of the policyholder or the insured, such presumption shall be reversed. If the insurer proves that the fire occurred due to the intention or gross negligence of the policyholder or the insured, it shall be deemed that the presumption is reversed. Notwithstanding the provisions of the terms and conditions that provides that the insurer bears the burden of proof of the reason for the reason for the exemption, it shall be demanded that the insured prove that the insurer did not have the burden of proof of the reason for the exemption, and thus, the purpose of the above terms and

In the same purport, the lower court is justifiable to have rejected the Plaintiff’s assertion that the Defendant (Counterclaim Plaintiff, hereinafter “Defendant”) should have the Defendant prove the friendlyness of the occurrence of the instant fire.

The court below did not err in the misapprehension of legal principles as to the burden of proof of friendlyness in fire insurance, contrary to what is alleged in the grounds of appeal.

The Supreme Court Decisions pointed out in the ground of appeal are different from this case, and they are inappropriate to be invoked in this case.

B. On the second ground for appeal

Where the terms and conditions of the fire insurance contract provide that "no compensation shall be made for any damage caused by intention or gross negligence of the policyholder or the insured," the insurer shall be responsible for proving the facts corresponding to the reasons for exemption from liability in order to be exempted from liability to pay the insurance proceeds. Here, the conviction refers to the degree of conviction of the judge, and the conviction refers to the absolute accuracy without any possibility of opposing it, such as the certification of natural science or education, but it refers to high probability to the degree of belief and doubt that it is true in the ordinary daily life of the ordinary person, and it is not enough to reach the degree of doubt or prosecution (see Supreme Court Decision 2008Da72578, 72585, Mar. 26, 2009).

Examining the reasoning of the judgment below in light of the records, we affirm the judgment below that the fire accident of this case was not caused by the defendant's intentional fire or gross negligence after recognizing the facts as stated in the judgment below, and the above circumstances alone are just.

The court below did not err in the misapprehension of legal principles as to the failure to exhaust all necessary deliberations, the violation of the rules of evidence, and the intentional or gross negligence exemption under Article 659 of the Commercial Act

C. On the third ground for appeal

Article 29 of the Plaintiff’s Fire Insurance Clause provides that “if the policyholder or the insured intentionally states false facts on the documents concerning the notice of liability for damages or the claim for insurance proceeds, or such documents or evidence are forged or altered, the insured shall lose the right to claim insurance against the damages.” The purport of the provision is to determine whether the insurer is liable for compensation under the insurance contract, to determine the amount of compensation, etc., the cause and situation of the insurance accident, the degree of damages, etc. is necessary. However, since materials related thereto are most located in the area of control and management of the contractor or the insured, it is necessary for the insured to provide accurate information thereon. Accordingly, if the insured claims excessive insurance proceeds in a fraudulent manner contrary to the principle of trust and good faith by forging documents or manipulating evidence, it should be deemed that the insured would lose its right to claim insurance proceeds as sanctions against the insured (see Supreme Court Decision 2004Da2027, 20234, Nov. 23, 2006).

The lower court determined that there is no evidence to acknowledge that the quotation, etc. submitted by Nonparty 1 to the adjuster of the instant fire accident was forged or altered by the Defendant or Nonparty 1, and that the Defendant or Nonparty 1’s offering of an exaggerated statement that was not consistent and exaggerated with respect to the damage incurred by the instant fire accident cannot be deemed as falling under Article 29 of the general terms and conditions stipulating that the damage claim may be lost in the event of a false claim.

However, in light of the reasoning of the lower judgment and the record, Nonparty 1 stated, immediately after fire, that “the value of the stage lighting fixtures 200 million won 50 million won ,” the lighting fixtures purchased directly from Seoul Cheongcheon Commercial Building and installed them to the Hanyang Special lighting in Gwangju, and lighting lighting purchased them 29,28,000 won ,” which was prepared by Nonparty 2 in Daejeon, submitted a written estimate to the effect that the lighting special lighting fixtures 29,28,00 won 29,28,000 won were entrusted to the lighting construction work. In the first instance court, Nonparty 1 presented a written estimate prepared by Nonparty 3, a lighting business operator, to the effect that “the 2000,000 won 20,000 won ,” which was prepared by Nonparty 1, the Seoul Cheongcheon Industrial Complex, and that the 100,000 won 20,000 won 30,000 won 30,000 won ,00.

In full view of the above circumstances, there is sufficient room to view that the defendant or the non-party 1 claims excessive insurance proceeds in a fraudulent manner contrary to the good faith principle by intentionally stating that the documents on notification of damage or claim for insurance proceeds are different from the facts.

Nevertheless, the court below determined that the above act of the defendant did not meet the requirement of the loss clause of insurance claim. The court below erred by misapprehending the legal principles on the loss clause of insurance claim, and it is clear that such illegality affected the judgment.

However, in a fire insurance contract concluded with several independent objects as the subject matter of insurance, it is reasonable to interpret that the right to claim the loss of the insured under the above terms and conditions refers only to the right to claim the damage of “the subject matter of insurance in which the insured has made a false claim” (see Supreme Court Decision 2006Da72093, Feb. 22, 2007). Therefore, the above illegality of the judgment below is limited to KRW 112,839,097, which is the part of the insurance money related to the internal facilities determined as a single insurance money including lighting facility damage.

D. On the fourth ground for appeal

The court below acknowledged that the fire insurance of this case was incorporated into a special contract, and held that according to Article 1 of the Special Clause, the insured is liable to compensate for damages caused by a fire to a person who has a legitimate right to the subject matter by imposing legal liability on the person who has a right to the subject matter. In this case, as in this case, if the insured is a lessee of the subject matter of insurance, as in the case, the insured is liable to compensate for the legal liability against the owner of the subject matter of insurance due to a fire, and thus, the insured should pay the insured insurance money to the insured. Accordingly, the court below held that the Defendant, a lessee of the building of this case, should pay the insurance money as a matter of course,

However, in the case of non-life insurance, only the type of the subject matter and risk of the insurance are determined, and the insured and the insured's interest are unclear, whether the insurance contract is for the policyholder itself or for the other party shall be determined in consideration of various circumstances such as the content of the insurance contract and the terms and conditions which the parties concerned have made into the insurance contract, the progress and process of the conclusion of the insurance contract, and the practice of the insurance company. In case where the lessee who operates a dance hall concludes the fire insurance with the lessee stating himself as the owner of the leased building and its facilities and fixtures within the dance hall as the subject matter of the insurance without clearly mentioning the insured, such fire insurance has the nature of the liability insurance, unless otherwise stipulated, to compensate the insured for the damage that the insured suffers due to the burden of the insurer's damage liability to the other person who is the owner of the property (see Supreme Court Decision 2002Da3496 delivered on January 24, 2003

In the instant case, as revealed in the records, the insurance subscription form or contract is not submitted, but ① according to the contents of the long-term insurance inquiry statement, the contractor and the owner are both the defendants and the insured are the defendants, ② details of the long-term insurance inquiry statement are divided into three items, including building security, house fixtures, and internal facilities. The claim form for insurance money is written in the name of the defendant, Chapter 1, Chapter 4 in the name of the owner of the building, and Chapter 1 in the name of the non-party 4, the claim form for the part of the building is written and submitted to the plaintiff. ③ There is no special agreement form of the "long-term Insurance Inquiry Clause" among the special terms and conditions, and the damage assessment report made after a fire is also investigated as having no special agreement form of the insurance contract of this case. Therefore, it is reasonable to deem that the lessee of the instant building is liable to indemnify the lessee of the instant insurance contract of this case.

Nevertheless, the court below recognized that the fire insurance of this case was incorporated into a special contract, and on this premise, ordered the plaintiff to pay insurance money for the damage to the building repair expenses to the defendant who is not the insured. The court below erred by misapprehending the legal principles as to the insured under the fire insurance contract.

The ground of appeal pointing this out also has merit.

2. As to the Defendant’s ground of appeal

Based on the circumstances stated in its reasoning, the lower court determined that the appraisal result of the ○○ Comprehensive Economic Research Institute, a foundation, is not reliable, and that the insurance money was calculated by adopting the appraisal result of the △△○ Adjustment Institute, a re-appraisal, as evidence. In light of the records, the lower court’

As alleged in the grounds of appeal, the court below did not err by violating the rules of evidence, and thus, it is not a legitimate ground of appeal to the effect that the court below erred by selecting evidence or finding facts belonging to the exclusive jurisdiction of the court below.

3. Conclusion

Therefore, the part of the judgment of the court below against the plaintiff as to the main lawsuit and counterclaim (23,942,092 won) and the insurance money of the interior facilities (112,839,097 won) are reversed, and this part of the case is remanded to the court below for a new trial and determination. The remaining appeal by the plaintiff and the appeal by the defendant are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Chang-soo (Presiding Justice)