Plaintiff 1 and four others (Attorney Lee Dong-young, Counsel for the plaintiff-appellant)

Future Life Insurance Co., Ltd. (Attorney Lee Byung-soo, Counsel for defendant-appellant)

December 21, 2011

Seoul Western District Court Decision 2009Kahap12498 Decided February 17, 2011

1. Of the judgment of the court of first instance, the part against the defendant ordering payment in excess of the following amount is revoked, and each of the plaintiffs' claims corresponding to that part is dismissed.

The defendant shall pay to the plaintiff 1 26,730,00 won, 10,619,421 won, 29,625,000 won to the plaintiff 3, 14,850,000 won to the plaintiff 4, and 1,951,860 won to the plaintiff 5, and 5% per annum from October 14, 2009 to February 1, 2012, and 20% per annum from the next day to the day of full payment.

2. The defendant's remaining appeals against the plaintiffs are dismissed.

3. Of the total litigation costs, 40% of the portion arising between the Plaintiff 1 and the Defendant is the same Plaintiff; the remainder is the same Plaintiff; the remainder is 70% of the portion arising between the Plaintiff 2 and the Defendant; the remainder is the Defendant; the part arising between the Plaintiff 3, 4 and the Defendant is the same Plaintiff; and the part arising between the Plaintiff 5 and the Defendant is 20% of the portion arising between the Plaintiff 5 and the Defendant.

1. Purport of claim

The defendant pays to the plaintiff 1 3,00,000 won, 33,000,000 won, 30,0000 won to the plaintiff 3, 15,000,000 won to the plaintiff 4, 2,600,000 won to the plaintiff 5, 5% per annum from the delivery date of the complaint to the pronouncement date of the judgment of the court of first instance, and 20% per annum from the next day to the day of full payment.

2. The defendant's purport of appeal

Of the judgment of the first instance, the part against the defendant against the plaintiff 1, 2, and 5 and the part against the plaintiff 3, and 4 respectively are revoked, and all of the plaintiffs' claims corresponding thereto are dismissed.

1. Basic facts

가. 원고 1은 2008. 5. 28. 피고의 보험모집인 소외 1(대법원판결의 소외인)을 통하여 피고와 사이에 피보험자 및 보험수익자를 원고 1, 보험료를 월 5,000,000원으로 하는 무배당 미래에셋 ○○○○ ○○○ ○○○○ ◎◎◎◎◎◎보험계약(이하 ‘이 사건 제1보험계약’이라 한다)을 체결하고, 그 때부터 2009. 2. 27.까지 보험료로 44,550,000원을 납입하였다.

나. 원고 2는 2007. 10. 23. 소외 1을 통하여 피고와 사이에 피보험자 및 보험수익자를 원고 2, 보험료를 월 2,500,000원으로 하는 무배당 미래에셋 △△△△ △△△ △△△△ ◎◎◎◎◎◎보험계약(이하 ‘이 사건 제2보험계약’이라 한다)을 체결하고, 그 때부터 2009. 3. 16.까지 보험료로 44,550,000원을 납입하였고, 2009. 4. 21. 납입보험료의 일부인 12,000,000원을 중도에 인출하였다.

다. 원고 3은 2008. 12. 30. 소외 1을 통하여 피고와 사이에 피보험자 및 보험수익자를 원고 3, 보험료를 월 10,000,000원으로 하는 무배당 미래에셋 ○○○○ ○○○ ○○○○ ◎◎◎◎◎◎보험계약(이하 ‘이 사건 제3보험계약’이라 한다)을 체결하고, 보험료로 29,625,000원을 납입하였다.

라. 원고 4는 2008. 12. 18. 소외 1을 통하여 피고와 사이에 피보험자 및 보험수익자를 소외 2, 보험료를 월 5,000,000원으로 하는 무배당 미래에셋 ○○○○ ○○○ ○○○○ ◎◎◎◎◎◎보험계약(이하 ‘이 사건 제4보험계약’이라 한다)을 체결하고, 보험료로 14,850,000원을 납입하였다.

E. On December 19, 2008, Plaintiff 5 entered into a non-distribution future insurance contract with Defendant 667,000 won per month with Nonparty 1 (hereinafter “instant insurance contract”) and paid KRW 1,951,860 as insurance premium.

F. Meanwhile, the instant 1 insurance contract concluded by Plaintiff 1 and the instant 2 insurance contract concluded by Plaintiff 2 was invalidated due to the said Plaintiffs’ failure to pay the premium, and Plaintiff 2 was paid KRW 14,850,965 as the invalidated refund from the Defendant on April 27, 2010, when the instant lawsuit was pending.

[Ground of recognition] In the absence of dispute, Eul evidence Nos. 1-2, 6, 7, Eul evidence Nos. 2-1, 2, 4, Eul evidence Nos. 3-1 through 6, Eul evidence Nos. 4-1 through 4, Eul evidence Nos. 5-6, Eul evidence Nos. 6, Eul's evidence Nos. 17-1, 2, Eul's testimony, and non-party No. 1's witness of the trial and the first instance trial, the whole purport of the arguments

2. Determination as to the plaintiff 1 and 2's claims

A. The parties' assertion

1) Plaintiff 1 and 2’s assertion

A) At the time of the conclusion of the instant first insurance contract, Plaintiff 1 did not have any explanation about the specific contents of the said insurance product or the risks of principal loss from Nonparty 1, the insurance solicitor of the Defendant, but signed the blank insurance contract with the knowledge of the subscription to the stock fund, and subsequently, did not have any insurance clause or insurance policy verifying the content of the insurance product from Nonparty 1.

B) At the time of entering into the instant secondary insurance contract, Plaintiff 2 did not have any explanation about the specific contents of the said insurance contract and the risk of loss of the principal. However, Plaintiff 2 did not have any insurance policy or insurance policy that can confirm the content of the insurance contract from Nonparty 1, after hearing the explanation that the premium was paid for not less than 18 months, signed in a blank insurance contract subscription to guarantee more than the principal amount, and later, Nonparty 2 did not have any insurance policy or insurance policy that can confirm the content

C) Therefore, the Defendant’s insurance solicitor Nonparty 1 violated the duty to specify and explain the insurance clauses at the time of entering into the instant insurance contract Nos. 1 and 2, and the Defendant is liable for damages suffered by Plaintiff 1 and 2 as the employer of Nonparty 1.

2) The defendant's assertion

The plaintiffs 1 and 2 knew well at the time of entering into each of the above insurance contracts the risk of principal loss in advance, or they listen to the explanation of the main contents of the terms and conditions in detail from the non-party 1 and sign them in writing, etc., so the above plaintiffs' claims are without merit.

B. Occurrence of liability for damages

1) Characteristics of the First and Second Insurance Contracts

이 사건 제1, 2보험계약은 ◎◎◎◎◎◎보험으로서, 납입보험료 중 위험보험료 부분은 계약해지시나 만기시에 환급되지 않는 무배당 유니버셜 보험의 특성과, 보험료 중 특별계정의 운용실적이 나쁜 경우에는 보험금액이 납입 보험료액이나 기본 보험금액에도 미치지 못하게 되는 변액보험의 특성을 모두 갖추고 있어 원금손실 위험이 있다.

2) The duty of explanation and degree of the insurance contract Nos. 1 and 2 of the instant case

약관의 규제에 관한 법률 제3조 제3항 , 보험업법 제95조 제1항 , 제97조 제1항 제1호 , 보험업법 시행령 제42조 제1항 , 상법 제638조의3 제1항 의 각 입법취지 및 신의성실의 원칙 등에 비추어 보면, 보험자는 보험계약 체결시 계약자에게 보험약관에 규정된 것이지 여부를 불문하고 당해 보험계약의 중요한 사항을 설명하여 줄 의무가 있고, 위 법령의 규정에 앞서 본 ◎◎◎◎◎◎보험의 특성 등을 고려하면, 납입보험료 중 저축보험료를 제외한 위험보험료 및 수수료 등에 해당하는 부분은 환급대상이 아니라는 점, 보험료 중 특별계정의 운용실적이 나쁜 경우에는 보험금액이 납입 보험료액이나 기본 보험금액에 미치지 못하게 되어 원금손실의 위험이 있다는 점 등은 설명의무가 부과되는 계약의 중요한 사항에 해당된다.

In the conclusion of an insurance contract, if the policyholder knows, or is common and common to the transaction, and even if there is no separate explanation, it is sufficiently anticipated, or if there is no matter that refixs or neglects to what is already stipulated by the law, it is necessary to clarify and explain in detail the important contents contained in the insurance terms and conditions, such as the content of the insurance product, etc. (see Supreme Court Decision 98Da59842, May 11, 1999, etc.). Therefore, if the insurer or the insurance solicitor explains important matters of the insurance contract, it is insufficient to simply deliver to the policyholder the document, such as the terms and conditions or the description of important matters of the contract, etc., and it is necessary to clarify and explain to the policyholder the important matters of

3) Determination on the first and second insurance contracts of this case

A) The First Insurance Contract of this case

(1) In full view of the statements and the purport of the entire arguments in Eul evidence Nos. 1-6, 7, and Eul evidence Nos. 6 and 14, the following facts can be acknowledged:

① The application form for an insurance contract, the personal credit information, the consent to the provision and utilization of personal credit information, the written consent to the deduction of monthly substitute premiums, the confirmation document on the comparison of insurance matters, the explanation letter on the major contents of variable insurance, and the written consent on the explanation column of the major contents of variable insurance prepared on May 28, 2008,

2. A written confirmation of major contents of variable insurance is printed on matters to be explained by the policyholder from the insurance solicitor, and the main words in each sentence are light printed, so that the policyholder re-written the same contents on the light printed parts.

(3) Paragraph (2) of the above explanation confirmation states, “this product is not an investment trust product for short-term holding purposes (such as accumulated funds), a deposit, and an installment savings, but an insurance product with free accumulation for long-term investment purposes with guarantee function (the bottom is stated on convenience to indicate the part printed on light; hereinafter the same shall apply), and Paragraph (5) of the above explanation confirmation states, “this insurance contract may cause losses to principal as it does not have the minimum guarantee rate.” Paragraph (6) states, “The insurance contract may cause losses to principal depending on the absence of the minimum guarantee rate,” and Paragraph (6) states, “The subscription design, terms, conditions, operating manual of variable insurance, written subscription, and received a duplicate of the subscription, and explain the important contents thereof,” and states, as written, the same content as written.

④ On June 3, 2008, the Defendant sent a telephone call to Plaintiff 1’s phone number stated in the first insurance contract, and asked “whether the Defendant was given an explanation of the important contents of the contract at the time of entering into the first insurance contract of this case, and received the product description, insurance clauses, subscription plans, etc..” However, the Defendant asked Plaintiff 1 to “e.g.,” both at the time of signing the first insurance contract.

(2) On the other hand, the following facts can be acknowledged in full view of the purport of the testimony and the entire argument of the non-party 1 of the party and the first instance court witness.

① Nonparty 1 solicited Plaintiff 1 to subscribe to the instant insurance contract without a product description or guidance, and explained that it was merely a product invested in the fund, and did not explain the characteristics or content of the instant insurance contract.

② At the time of Plaintiff 1’s signature on the application of the first insurance contract of this case, the said application was blanks with both the name of the goods, amount, and content. Nonparty 1, an insurance solicitor of the Defendant, signed by Plaintiff 1, was then signed by Plaintiff 1, and later filled in the cans later and then filled in the remaining contents in the application form, etc.

③ Nonparty 1 directly written and puts the following columns, namely, ① confirmation and receipt terms and conditions of the product description, ② confirmation and receipt terms and conditions, ③ receipt terms and conditions of the insured deposit deposit terms and conditions, ③ receipt terms and conditions, ④ receipt terms and conditions of the insurance premium receipt (or credit card use details and automatic transfer details), and receipt of the quality guarantee in detail.”

④ Nonparty 1 entered Nonparty 1’s face-to-face printed portion, which had the policyholder enter directly in a written confirmation of major contents of variable insurance, at the end, Nonparty 1’s wife entered the name and signature of Plaintiff 1.

⑤ At the time of the conclusion of the instant first insurance contract, Nonparty 1 stated that “At the time of Nonparty 1’s questioning whether an employee of the insurance company in Ghana received the terms and conditions by telephone, etc., Nonparty 1 was subject to the opposite contractual terms and conditions.”

6) After the conclusion of the instant first insurance contract, Nonparty 1 did not deliver the insurance clause or insurance policy to Plaintiff 1.

7) The Plaintiff 1 did not provide an explanation to Nonparty 1 within 15 days after the conclusion of the above insurance contract, and it did not provide an explanation to Nonparty 1.

(3) When comparing and integrating the probative value of the above facts, the defendant's insurance solicitor non-party 1 at the time of entering into the first insurance contract of this case cannot be deemed to have fulfilled the duty to specify and explain the important contents of the insurance contract to which the plaintiff 1 joined.

B) The second insurance contract of this case

(1) The following facts may be acknowledged in full view of the entries in Eul evidence 2-1, 2, 4, and Eul evidence 15 and the purport of the whole pleadings.

① The application form for an insurance contract, the consent to the provision and utilization of personal credit information, and each letter of explanation of major contents of amount-variable insurance written on October 23, 2007, contain the name and signature of Plaintiff 2.

② As seen earlier, as in Plaintiff 1, Plaintiff 2 also stated the same content on the light printed part of a written confirmation of major contents of variable insurance.

③ On October 23, 2007, Plaintiff 2 confirmed that “The Plaintiff 2 received an explanation of the important contents of the contract at the time of entering into the instant secondary insurance contract and received a product description, insurance terms and conditions, design for subscription, etc.,” and that “the insured was informed of the possibility that the principal loss may occur due to a change in the return on profit as a performance-based product” and that “the Plaintiff 2 received a phone call from the Defendant monitoring staff.”

(2) On the other hand, the following facts can be acknowledged in full view of the purport of the testimony and the entire argument of the non-party 1 of the party and the first instance court witness.

① At the time of Nonparty 1’s sale to Plaintiff 2, Nonparty 1 presented the rate of return on the said goods in the same manner as “△△ Man,” among the goods sold by the Defendant, and provided explanation that the principal is above the principal, but did not provide any particular explanation on the characteristics or content of the instant secondary insurance contract.

② At the time when Plaintiff 2 signed the application for the second insurance contract of this case, the name of the goods, amount, and content of the said application were blanks, and Nonparty 1, an insurance solicitor of this case, signed by Plaintiff 2, signed by Plaintiff 2, and later filled in the cans later and then filled in the remaining contents in the application form.

③ As seen earlier, as in the case of Plaintiff 1, in the case of Plaintiff 2, the “Duty to Notify the contract text” printed on the insurance contract form, or both Nonparty 1 and Nonparty 2, whose content is expressed in a clause clause, were written or put in body.

④ The portion printed on light, which had the policyholder enter directly in a written confirmation of major contents of variable insurance, was also written by Nonparty 1.

⑤ At the time of entering into the instant secondary insurance contract, Nonparty 1: (a) stated that “At the time of entering into the instant secondary insurance contract, Nonparty 1 was asked whether an employee of the insurance company was subjected to the terms and conditions by telephone; and (b) that the contract was entered into and confirmed to have received the terms and conditions.”

(3) When comparing and integrating the probative value of the above facts, the defendant's insurance solicitor non-party 1 at the time of entering into the second insurance contract of this case cannot be deemed to have fulfilled the duty to specify and explain the important contents of the insurance contract to which the above plaintiff 2 joined.

4) Sub-determination

As above, Nonparty 1, the Defendant’s insurance solicitor, did not fully explain the terms of each insurance contract to Plaintiff 1 and 2 at the time of entering into the instant insurance contract, and such violation of the duty to explain by Nonparty 1 constitutes tort against Plaintiff 1 and 2. Thus, the Defendant is an employer of Nonparty 1, who is liable for damages suffered by the above Plaintiffs pursuant to the main sentence of Article 102(1) of the Insurance Business Act.

C. Scope of liability for damages

1) Total amount of damages

The plaintiff 1 paid KRW 44,50,00 as insurance premium pursuant to the insurance contract of this case. The plaintiff 2 paid KRW 44,550,00 as insurance premium pursuant to the insurance contract of this case. The plaintiff 2 paid KRW 12,000 as insurance premium of this case, and then paid KRW 14,850,965 as effective refund due to the cancellation of the second insurance contract of this case. The plaintiff 1 paid KRW 44,550,00 as insurance premium of this case and KRW 44,50,50 as insurance premium of this case under the first insurance contract of this case, and KRW 12,50,00 as insurance premium of this case, KRW 44,550,00 as well as KRW 50,00 as 12,000,000, KRW 500 as well as KRW 14,50,000, KRW 505,005, KRW 94,506,005.

2) Fruits offsetting

However, the plaintiff 1 paid insurance premiums for about 9 months without any objection even though the defendant or non-party 1 did not receive the insurance terms and conditions or insurance policies as above. When entering into the first insurance contract of this case, the non-party 1 was asked to explain the important contents of the insurance contract if he would get the defendant's monitoring staff call from the non-party 1 and consented to it. Accordingly, the plaintiff 1 asked to the effect that when the defendant's monitoring staff was called the phone number stated in the first insurance contract, the plaintiff 2 paid insurance premiums for about 18 months without any objection, and the plaintiff 2 received the defendant's monitoring staff telephone after entering into the second insurance contract of this case and received the terms and conditions, etc. after receiving the defendant's monitoring staff's explanation about the important contents, it is reasonable to limit the defendant's liability for damages by 60% as a whole for fair sharing of damages.

3) As to the defendant's assertion of offsetting profits and losses

The defendant asserts that the amount of KRW 12,00,00,00 already paid by the plaintiff 2, as well as KRW 14,850,965, which was withdrawn from the early payment of the premiums of KRW 44,50,00,00, and the effective termination of losses is subject to the offsetting of profit and loss, and the amount of offsetting of profit and loss should be deemed as the plaintiff's damages, since the offsetting of profit and loss should be done after the offsetting of negligence.

However, the computation of profit and loss should be distinguished, and in order to allow the offsetting of profit and loss in calculating the amount of damages, there should be a proximate causal relationship between the victim's new profit and the act which is the cause of the liability for damages (see Supreme Court Decision 2006Da19603, Nov. 30, 2007, etc.).

Although Plaintiff 2 voluntarily withdrawn KRW 12,00,000 pursuant to the instant secondary insurance contract and received KRW 14,850,965 with the effective termination payment, it is merely a circumstance to consider in calculating the amount of damages, and thus, it is deemed that the damage was incurred as much as the amount calculated by deducting the amount paid from the already paid insurance money, and it is not deemed that all the already paid insurance premiums incurred damage incurred, and that the amount equivalent to the already paid insurance premium was newly obtained from the above early withdrawal or the amount for the effective termination of the payment. Thus, the Defendant’s above assertion is without merit.

4) Sub-determination

Therefore, the defendant is obligated to pay to the plaintiff 1 1 26,730,00 won (=44,550,000 won x 60%) 10,619,421 won (=17,69,035 won x 60% for convenience x 60% for convenience x less than a small number for convenience ) and each of them after the date on which the complaint of this case was served to the defendant as the date on which the complaint of this case was served to the defendant as requested by the plaintiff 1 and the plaintiff 2 after the date on which the complaint of this case was served to the defendant as of October 14, 2009 until February 1, 2012, which is a date on which the judgment was rendered, to dispute about the scope of the defendant's obligation to perform, 5% per annum under the Civil Act and 20% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings.

3. Determination as to the claims of plaintiffs 3, 4, and 5

A. The parties' assertion

1) Plaintiff 3, 4, and 5’s assertion

A) At the time of entering into the third insurance contract of this case, Plaintiff 3 signed the blank insurance contract in writing without hearing detailed explanation of the insurance products or explanation of the risk of loss of principal from Nonparty 1. After entering into the contract, Plaintiff 3 was unable to receive the insurance terms and conditions or insurance policies from Defendant or Nonparty 1.

B) At the time of entering into the instant 4 insurance contract, Plaintiff 4 signed the blank insurance contract in writing without hearing detailed explanation of the insurance products or explanation of the risk of loss of principal from Nonparty 1. After entering into the instant 4 insurance contract, the Defendant and Nonparty 1 did not have received the insurance terms and conditions or the insurance policy from Nonparty 1.

C) Plaintiff 5 did not write his signature on the relevant documents, such as the application form for the instant insurance contract, and Nonparty 1 stated in the above subscription form, etc. forged the Plaintiff 5’s signature. After entering into the instant 5 insurance contract, the Defendant or Nonparty 1 was unable to receive the insurance terms and conditions or the insurance policy from the Defendant or Nonparty 1.

D) On March 20, 2009, Plaintiff 3 filed an objection to quality assurance on the grounds of non-receiving of the insurance terms and conditions and non-acceptance of important contents. Plaintiff 4 filed an objection to quality assurance at Defendant Branch on March 17, 2009 on the grounds of non-receiving of the insurance terms and conditions. Plaintiff 5 filed an application for quality assurance at Defendant Branch on March 18, 2009 on the grounds of non-receiving of the insurance terms and conditions.

E) Therefore, the Defendant is liable to compensate the damages inflicted on the Plaintiffs by either returning the insurance premium paid on the basis of the above quality guarantee filing, or Nonparty 1’s employer who violated the duty to explain and explain the insurance terms and conditions at the time of entering into the instant insurance contract 3 through 5.

F) claim against the Defendant for the return of the premium primarily and the conjunctive damages.

2) The defendant's assertion

1) At the time of entering into each of the above insurance contracts, the above Plaintiffs, upon hearing the explanation of the main contents of the terms and conditions from Nonparty 1 in detail, signed the written subscription for insurance contracts, etc.

2) The above plaintiffs concluded each of the above insurance contracts with the defendant for the purpose of deceiving the advance payment allowances from the defendant in collusion with the non-party 1, which is a fraudulent contract, and the parties to the fraud cannot seek the return of the advance payment premium when seeking the cancellation of the contract.

B. Judgment on the main claim

1) Determination as to Plaintiff 3’s claim

A) In full view of the respective descriptions and arguments set forth in Nos. 3-1 through 6, No. 8-2, 3, and Nos. 12 and 26, the following facts may be acknowledged.

① The application form for an insurance contract made on December 30, 2008, the statement of comparison of insurance matters, and the statement of explanation of major contents of variable insurance policies, respectively, shall contain the name and signature of Plaintiff 3.

② As seen earlier, Plaintiff 1 entered the same content in the light printed part of the certificate of explanation of major contents of variable insurance as in the case of Plaintiff 3.

③ On January 6, 2009, Plaintiff 3 respondeded to the Defendant’s phone call to the Plaintiff’s monitoring staff who heard the explanation of the important contents at the time of entering into the instant third insurance contract, and received the product description, insurance terms, subscription drawings, etc., and “The insured was informed that the principal loss may occur due to a change in profit rates due to the performance-based product.”

④ The certificate of manager prepared by Nonparty 3, the head of the △△ branch office in Defendant 1, indicated that “the Plaintiff 3 had sufficiently explained the goods at the time of the contract, and received confirmation of the accuracy of the complete sale from the insurance solicitor.”

B) Meanwhile, the following facts can be acknowledged in full view of the evidence No. 6-1, evidence No. 8-1, evidence No. 8-1, evidence No. 18-1, and evidence No. 18, evidence No. 18-1, evidence No. 18, and the purport of Non-Party

① Nonparty 1 recommended Plaintiff 3 to subscribe to the instant third insurance contract without a product description or guidance, and presented only an earning rate. Nonparty 1 did not explain the characteristics or content of the instant third insurance contract.

② At the time when Plaintiff 3 signed the application for the third insurance contract of this case, both the name of the goods, amount, and content of the application were blanks, and Nonparty 1, an insurance solicitor of the Defendant, signed by Plaintiff 3, signed by Plaintiff 3, followed up later, and added the remaining contents in the application form, etc.

③ As seen earlier, as in the case of Plaintiff 1, in the case of Plaintiff 3, the “Duty to Notify the contract text” printed on the insurance contract form, or both Nonparty 1 and Nonparty 1 indicated or put in weight any column where the contractor himself/herself puts the content in a clause clause.

④ Nonparty 1 entered Nonparty 1’s name and signature of Plaintiff 3 at the end, on the light printed portion, which had the policyholder enter the major contents of variable insurance directly.

⑤ At the time of entering into the 3 insurance contract of this case, Nonparty 1: “At the time of entering into the 3 insurance contract of this case, Nonparty 1 asked Plaintiff 3 whether or not an employee of the insurance company was subjected to the terms and conditions by telephone, etc., and the contract was entered into, and confirmed that he received the terms and conditions.”

6) After entering into the third insurance contract of this case, Nonparty 1 did not deliver the insurance clause or insurance policy to Plaintiff 3.

7) The details of solicitation prepared by Nonparty 1 on April 13, 2009 indicate that the terms and conditions were not delivered at the time of the contract, that the terms and conditions were received at the time of monitoring, and that the terms and conditions and the securities were attempted to be delivered at the time, but failed to be delivered at the time.

⑧ 원고 3은 2009. 3. 20. 보험약관 미수령 및 중요내용 미설명을 이유로 피고의 ◁◁지점을 방문하여 품질보증 이의신청서를 제출하였다.

9. Article 4(1), (2), and (4) of the Clause of the 3 insurance contract of this case provides that "the defendant shall deliver to the contractor a copy of the terms and conditions and the written subscription, and explain the important contents of the terms and conditions to the contractor, and if the defendant fails to deliver a duplicate of the terms and conditions and the written subscription to the contractor, or fails to explain the important contents of the terms and conditions, the contractor may cancel the contract within three months, and if the contract is cancelled, the defendant shall refund the premium already paid to

C) Examining the probative value of the above facts in comparison and aggregate, the instant Type 3 insurance contract concluded between the Plaintiff 3 and the Defendant constitutes a case where the Defendant did not deliver the copies of the terms and conditions and the written offer to the Plaintiff 3 at the time of concluding the instant Type 3 insurance contract, or did not explain the important contents of the terms and conditions. Since Plaintiff 3 raised an objection to quality guarantee on March 20, 2009, which was within three months from December 30, 2008, the date of subscription, the Defendant is obligated to refund the premiums already paid to Plaintiff 3.

2) Determination as to Plaintiff 4’s claim

A) In full view of the respective descriptions and arguments of the evidence Nos. 4-1 to 4, 9-2, 3, 11, and 26 of the evidence Nos. 4-2, 3, 11, and 26, the following facts may be acknowledged:

① The application form for insurance contracts made on December 18, 2008, the statement of comparison of insurance matters, and the statement of explanation of major contents of variable insurance policies, respectively, shall contain the name and signature of Plaintiff 4.

② As seen earlier, as in Plaintiff 1, Plaintiff 4 also stated the same content on the light printed part of a written confirmation of major contents of variable insurance.

③ On December 23, 2008, Plaintiff 4 responded to the Defendant’s phone calls for monitoring staff to “e.g.,” which sought an explanation of important matters at the time of entering into the instant 4 insurance contract, and received product description, insurance terms and conditions, design documents, etc., and whether the subscribed insurance was informed of the possibility of loss of principal due to changes in the return on profit as a performance-based product.”

④ The written confirmation of the manager prepared by Nonparty 3, the head of the △△ branch office of Defendant 1, indicated that “the Plaintiff 4 had sufficiently explained the goods at the time of the contract, and received confirmation of the accuracy of the complete sale from the insurance solicitor.”

B) Meanwhile, in full view of the following facts, the evidence No. 6-1, Eul evidence No. 9-1, Eul evidence No. 22, Eul evidence No. 22, and the testimony and the whole purport of the testimony and arguments by non-party No. 1 of the first instance trial witness, the following facts can be acknowledged.

① Nonparty 1 solicited Plaintiff 4 to subscribe to the instant 4 insurance contract without presenting a product description or guidance, and did not provide any particular explanation on the characteristics or content of the instant 4 insurance contract.

② At the time when Plaintiff 4’s signature was written on the application for the instant 4 insurance contract, the name of the goods, amount, and content of the said application were blanks, and Nonparty 1, an insurance solicitor of the Defendant, signed by Plaintiff 4, was later sealed by Plaintiff 4, and then filled in the cans later and then filled in the remaining contents in the application form, etc.

③ As seen earlier, as in the case of Plaintiff 1, in the case of Plaintiff 4, the “Duty to Notify the contract text” printed on the insurance contract form, or both Nonparty 1 and Nonparty 1 indicated or put in weight any column where the contractor himself/herself puts the content in a clause clause.

④ Nonparty 1 also stated the light printed portion, which had the policyholder enter the major contents of variable insurance directly, in a written confirmation of major contents of variable insurance.

⑤ At the time of the conclusion of the instant 4 insurance contract, Nonparty 1: “At the time of Nonparty 4’s signing the instant 4 insurance contract, Nonparty 1 asked Plaintiff 4 whether or not an employee of the insurance company was subjected to the terms and conditions by telephone, etc., and the contract was entered into, and answer to Nonparty 1.”

6) After the conclusion of the instant 4 insurance contract, Nonparty 1 did not deliver the insurance clause or insurance policy to Plaintiff 4.

7) A written statement of recruitment prepared by Nonparty 1 on April 13, 2009, stating that “The terms and conditions at the time of the contract were not delivered, it was asked to answer that the terms and conditions were not received at the time of monitoring, and subsequently, it was intended to deliver the terms and conditions, but was not delivered, and the securities were issued but were not delivered on the next day.”

⑧ 원고 4는 2009. 3. 17. 보험약관 미수령 등을 이유로 피고의 ◁◁지점을 방문하여 품질보증 이의신청서를 제출하였다.

9. Article 4(1), (2), and (4) of the instant 4 insurance policy provides that “When concluding a contract, the Defendant shall deliver to the contractor a duplicate of the terms and conditions and subscription forms, and explain the important contents of the terms and conditions to the contractor. If the Defendant fails to deliver a duplicate of the terms and conditions and subscription forms to the contractor or fails to explain the important details of the terms and conditions, the contractor may cancel the contract within three months, and if the contract is cancelled, the Defendant shall refund the premium already paid to the contractor.”

C) Comparing and integrating the probative value of the above fact, the instant 4 insurance contract concluded between the Plaintiff 4 and the Defendant constitutes a case where the Defendant did not deliver to the Plaintiff 4 the copies of the terms and conditions and the written subscription at the time of concluding the instant 4 insurance contract, or did not explain the important contents of the terms and conditions. Since Plaintiff 4 raised an objection to quality guarantee on March 17, 2009, which was within three months from December 18, 2008, the date of subscription, the Defendant is obligated to refund the insurance premium already paid to Plaintiff 4.

3) Determination as to Plaintiff 5’s claim

A) In full view of the respective descriptions of No. 5-5, 6, Eul evidence No. 10-1, 2, Eul evidence No. 13 and the purport of the whole pleadings, the following facts can be acknowledged.

① The letter of subscription to an insurance contract made on December 19, 2008, stating the name and signature of Plaintiff 5, in the form of writing signature.

② On December 23, 2008, Plaintiff 5 asked “whether the application was signed and sealed at the time of entering into the instant insurance contract”, “whether the content of the product description was directly written and printed,” and “whether the contract was received including the duplicate of the application at the time of entering into the instant insurance contract and the operating manual of the product description”, and asked “the Defendant’s monitoring staff call,” both.

③ A written statement of recruitment prepared by Nonparty 1 on April 13, 2009, stating that “Plaintiff 5 signed the written signature at the office on December 19, 2008, and received the duplicate of the written application and the product description on the same day.”

B) Meanwhile, in full view of the evidence No. 5, evidence No. 6-3, evidence No. 5-5, and evidence No. 6-6, and the testimony and whole purport of the testimony and pleading by Non-Party 1 of the first instance court, the following facts can be acknowledged.

(1) An offer of an insurance contract made on December 19, 2008 shall not include the subscription number, contract date, product name, etc.

② The name and signature of Plaintiff 5 in the above insurance contract were written on behalf of Nonparty 1.

③ At the time of entering into the instant 5 insurance contract, Nonparty 1: (a) asked Plaintiff 5 whether or not an employee of the insurance company was subjected to the terms and conditions by telephone; and (b) asked Nonparty 1 to answer the conclusion of the contract; and (c) asked Nonparty 5 to answer that the contract was concluded, etc.

④ After the conclusion of the instant 5 insurance contract, Nonparty 1 did not deliver the insurance clause or insurance policy to Plaintiff 5, and Nonparty 1 prepared the written solicitation statement as above was for the purpose of not being subject to business suspension and dismissal.

⑤ On March 18, 2009, Plaintiff 5 visited Defendant Branch to apply for quality assurance on the grounds that the insurance clause and the insurance policy were not received.

6. Article 3(2) and (4) of the instant insurance contract provides that “When the Defendant fails to deliver the terms and conditions and the copies of the subscription to the contract to the contractor, or the contractor fails to sign the subscription at the time of concluding the contract, the contractor may cancel the contract within three months from the date of subscription, and where the contract is cancelled, the Defendant shall refund the premium already paid to the contractor.”

C) Comparing and integrating the probative value of the above fact, the instant insurance contract concluded between the Plaintiff 5 and the Defendant constitutes a case where the Defendant did not deliver its duplicates and written subscription to Plaintiff 5, or Plaintiff 5 did not sign it at the time of concluding the contract. Since Plaintiff 5 applied for quality guarantee on March 18, 2009, which was within three months from December 19, 2008, the subscription date, the Defendant is obligated to refund the insurance premium already paid to Plaintiff 5.

4) Judgment on the defendant's assertion

A) The assertion of an accomplice in fraud

The defendant asserts that the above plaintiffs concluded the insurance contract of this case with the purpose of receiving advance payment allowances from the defendant in collusion with the non-party 1 for the following reasons.

In light of the following circumstances, it is doubtful that Nonparty 1 was an act of acquiring advance payment allowances from the Defendant, or that the said Plaintiffs did not interfere with or assist Nonparty 1 in such an act, in light of the written statements of Nonparty 20, 21, 24, 25, and evidence of Nonparty 28 through 45 (including each number), and the overall purport of the pleadings in the testimony of Nonparty 1 and Nonparty 1 of the first instance trial.

① Plaintiff 4 is the same as Nonparty 1 and an elementary school, and Plaintiff 3 and Nonparty 5 seems to have deep friendly relationship with Nonparty 1.

② On November 208, 2008, prior to Nonparty 1’s solicitation of each of the instant insurance contracts, around November 2008, Nonparty 1 had very poor business performance, and only KRW 29,172,240 of the termination fee to be returned upon termination of the existing insurance in the same month, and KRW 11,841,378 of the fee was not recovered in the month and carried forward.

③ Nonparty 1 received total of KRW 59,406,584 from December 2, 2008 to February 2, 2009 pursuant to the instant insurance contract from December 3 to 5, 2008, which exceeds the aggregate of the premiums paid by the said Plaintiffs.

④ The above plaintiffs filed an application for quality assurance or an objection to quality assurance against the defendant was around the time when the non-party 1 retired from the defendant company.

⑤ Nonparty 1 has lent or lent on behalf of the above Plaintiffs once insurance premium, etc. that the above Plaintiffs subscribed to.

6. The above plaintiffs shall pay the first time insurance premium by automatic transfer, and the second and third times insurance premium shall be paid in the way of deposit into the defendant's virtual account, and the source of the amount is not clear.

7) The above Plaintiffs actively cooperate with the Defendant in soliciting insurance, such as entering into a separate insurance contract with the Defendant through Nonparty 1, from November 2008 to January 2009, before and after entering into the instant insurance contract Nos. 3, 4, and 5.

However, the above recognition circumstance alone is insufficient to recognize that the above plaintiffs participated in the illegal act of Nonparty 1 without additional proof as to the public invitation relationship between the above plaintiffs and Nonparty 1 and the form of distributing profits, etc., and there is no other evidence to acknowledge it. Thus, the defendant's above assertion is rejected as it is without merit.

B) Claim for offsetting negligence

The defendant asserts that there should be comparative negligence in terms of the fair burden of damages, since the above plaintiffs aided and abetted the act of deceitation by Nonparty 1 or falsely responded to the defendant's monitoring staff's telephone, but the plaintiff does not seek damages from the main claim of this case, but seek the return of the insurance money already paid according to the agreement, so the defendant's assertion claiming the reduction of the amount of damages due to negligence is not justified.

6) Sub-decisions

The Defendant is obligated to pay to Plaintiff 3 KRW 29,625,00, KRW 14,850,00, KRW 150,00, and KRW 1,951,860 to Plaintiff 5, as well as damages for delay calculated at each rate of 20% per annum as stipulated in the Civil Act from October 14, 2009 to February 1, 2012, which is the date when the complaint of this case was served on the Defendant, as sought by Plaintiff 3, 4, and 5, which is obvious in the record that the Defendant raised an objection against the quality guarantee by the above Plaintiffs, and the damages for delay calculated from the following day to the date when the complaint of this case was served on the Defendant.

C. Whether to determine the conjunctive claim

Since some of the above plaintiffs' primary claims were dismissed, it is necessary to determine the conjunctive claims. However, according to the facts acknowledged earlier, even if liability for damages arising from illegal acts is recognized, it is clear that it does not exceed the money cited in the primary claims. Thus, no further examination is required for the conjunctive claims.

4. Conclusion

The plaintiffs' claims in this case against the defendant are accepted within the scope of the above recognition, and the remaining claims are dismissed as they are without merit. Since the judgment of the court of first instance is partially different, the part against the defendant ordering payment in excess of the above-mentioned money among the judgment of the court of first instance is revoked, and the plaintiffs' claims corresponding to that part are dismissed, and since the remaining appeals against the defendant against the plaintiffs are without merit, they are dismissed. It is so decided as per Disposition.

Judges Lee Il-man (Presiding Judge)

주1) 원고 3은 소외 1의 권유로 2009. 1. 30. 월납보험료 2,455,000원의 미래에셋 ▽▽▽▽ ▽▽▽ ▽▽▽▽▽통합 보험계약에 가입하였고, 원고 4는 2008. 11. 28. 월납보험료 150만 원의 ◎◎◎◎◎◎보험을 가입하였으며, 원고 5는 2008. 12. 19. 월납보험료 300만 원의 ○○○○ ◎◎◎◎◎◎보험에 가입하였다가 이를 취소한 사실이 있고, 2009. 1. 15. 월납 보험료 100만 원의 □□□□ 변액연금보험에 가입하여 1회 보험료까지 납부하였다.

2) The defendant asserts that the above plaintiffs voluntarily cancelled their subscription to each of the above insurance contracts, but it is not clear whether the above plaintiffs voluntarily cancelled their subscription to each of the above insurance contracts, and there is no evidence to support that the above plaintiffs cancelled their subscription in the motive as alleged by the defendant. Thus, this part of the defendant's assertion is rejected.