2016Na2081940 Insurance proceeds

A

1. A stock company with skin life insurance;

2. An interesting national life insurance company;

Seoul Central District Court Decision 2016Da500301 Decided October 21, 2016

October 26, 2017

December 7, 2017

1. All appeals by the Defendants are dismissed.

2. The costs of appeal are assessed against the Defendants.

1. Purport of claim

The Plaintiff shall pay the amount of KRW 300,000 for Defendant Pacc Life Insurance Co., Ltd., and KRW 80,000 for Defendant Pacc Life Insurance Co., Ltd., and KRW 80,000 for each of them, 6% per annum from July 6, 2015 to the delivery date of a copy of the instant complaint, and 15% per annum from the next day to the day of full payment.

2. Purport of appeal

The part against the Defendants in the judgment of the first instance is revoked, and all of the Plaintiff’s claims for revocation are dismissed (the Plaintiff, at the first instance court, claimed 6% delay damages from July 6, 2015, which is within three business days from the date of the claim for insurance proceeds, to the Defendants, and sought payment of damages for delay calculated at the rate of 15% per annum as stipulated in the Commercial Act, from the day after the duplicate of the complaint of this case is served to the day of full payment. However, on the grounds that there is no evidence as to the date of the claim for the above insurance proceeds, the first instance court did not request the Defendants to pay damages for delay at the rate of 6% per annum as stipulated in the former Commercial Act from the day following the delivery date of the duplicate of the complaint of this case to Oct. 21, 2016, which is the date of the first instance judgment, until the day after the date of full payment, and the part pertaining to delay damages from the former 15% delay damages from the judgment to the date of full payment. Accordingly, the Plaintiff did not file an appeal against the Defendants.

1. Basic facts

A. Conclusion of each insurance contract between the Plaintiff and the Defendants

On September 16, 2014, the Plaintiff entered into an insurance contract with the Defendant C&C Life Insurance Co., Ltd. (hereinafter referred to as “Co., Ltd.”) as shown in the attached Table 1 (hereinafter referred to as “Class 1 insurance contract”) with the Plaintiff’s spouse, and entered into an insurance contract as described in the attached Table 2 (hereinafter referred to as “Class 2 insurance contract”) with the Defendant C&C life insurance, respectively. On the first installment, the Plaintiff paid KRW 691,200 in the case of the first insurance contract, and KRW 421,60 in the case of the second insurance contract.

(b) Medical history, such as diagnosis and treatment of the deceased;

1) The Deceased, while engaging in the taxi driving service and undergoing a health examination every year from 2009 to 2013, was judged as 'normal B' as a result of the medical examination. However, as for the chest radiation testing conducted as a part of the health examination at C Council on November 20, 2013, the 'contincy increased 'continction' was confirmed, and was given a regular additional inspection opinion after receiving the diagnosis of non- tuberculosis diseases.

2) From October 29, 2013 to August 8, 2014, the Deceased was diagnosed in detail on seven occasions as acutely known and acute organ infection, etc., and received treatment.

3) After September 2, 2014, the Deceased was treated as a part of a national subdivision on the part of the inner side and the right upper part of D Council members on September 3, 2014. On September 13, 2014, the Deceased was issued a written request for medical treatment at the same hospital for the treatment of a superior hospital on the part of the national subdivision.

4) After September 18, 2014, the Deceased received medical treatment in the name of the disease as listed below from the Korea Atomic Energy Hospital before receiving the diagnosis of waste cancer.

A person shall be appointed.

A person shall be appointed.

5) From October 13, 2014, the Deceased started the inspection and hospitalization at the Korea Atomic Hospital located in Nowon-gu in Seoul Special Metropolitan City from October 13, 2014, and was diagnosed as a “waste cancer” at the same hospital on October 16, 2014 and was treated as an air cancer treatment for waste cancer.

C. Death of the Deceased

On April 1, 2015, the Deceased died of brain damage caused by the lung cancer at the Korea Atomic Energy Hospital at around 20:26.

[Based on Recognition] Unsatisfy Facts, Gap evidence 1 and 3 evidence 1, 2, Gap evidence 2, 4, Eul evidence 5-1 through 4, Eul evidence 6-1, 2, Eul evidence 7-1 through 6, Eul evidence 8 and 10, and the purport of the whole pleadings

2. Judgment on the Plaintiff’s assertion of the cause of claim

According to the above facts, barring any special circumstance, Defendant C&C life insurance is obliged to pay the death insurance amount of KRW 300 million according to the first insurance contract (i.e., death insurance amount of the main contract + KRW 100 million + KRW 200 million per regular agreement) to the Plaintiff, and Defendant C&C life insurance is obliged to pay the death insurance amount of KRW 80 million according to the second insurance contract and the damages for delay.

3. Judgment on the defendants' assertion

A. Summary of the defendants' assertion

1) Summary of the defendants' assertion as to violation of Article 103 of the Civil Code

In light of the following circumstances, each insurance contract between the plaintiff and the deceased is null and void in violation of Article 103 of the Civil Act as it aims to unlawfully acquire a large amount of death insurance money through a large number of insurance contracts.

A) On September 2014, the Plaintiff purchased six insurance policies based on a person’s personal care within a short period of up to two weeks. At the time, the Deceased had already been suffering from a disease or injury related to waste cancer and seems to have been aware of it. Nevertheless, the Plaintiff and the Deceased notified the Defendants to the effect that “the deceased is healthy at the time of concluding the insurance contract,” and that the total sum of the death insurance proceeds based on the six insurance contracts as above, is a considerable amount of KRW 1.2 billion, and the first and second insurance contracts are not savings insurance but as a guarantee insurance. In light of the above, there is no reasonable ground for the Plaintiff’s above insurance policy.

B) The amount of income reported by the Plaintiff and the Deceased in operating the “Hnodes Bank” is merely 1 million won per month even if it was based on the income in the year 2014, and thus, is insufficient without any threshold compared to the total monthly insurance premium of KRW 2,907,627, and monthly insurance premium of KRW 3,521,364, which the Plaintiff subscribed to the Defendants and the first instance trial codefendant life insurance (hereinafter “agricultural Life Insurance”), and the total monthly insurance premium of KRW 3,521,364. In other words, in this case, the Plaintiff subscribed to an excessive insurance contract to pay monthly insurance premium on a regular basis to the extent that it is difficult for the Plaintiff to bear in light of its economic circumstances.

C) During the process of concluding the first and second insurance contract, the Plaintiff and the Deceased notified that they had no physical disability despite that they had been in the situation where several clinics and hospitals had been in the absence of any detailed respiratory symptoms and subsidiary symptoms caused by the lung cancer and reported several times of medical treatment. Despite the Deceased’s experience of smoking for about 33 years a day, the Deceased provided a reduction of smoking experience, and notified the Deceased’s mother to the effect that he did not have any family capacity, and that he did not have any other insurance company’s life insurance or other insurance. The Deceased did not notify that he was a taxi driver, and that the monthly income of the Plaintiff and the Deceased was about 10 million won a day, and that he notified the Defendants of various false facts.

2) Summary of the Defendants’ assertion on the breach of the duty of disclosure prior to the contract

In light of the following circumstances, the defendants can refuse the plaintiff's claim for the payment of insurance money on the ground of the violation of the insurance clauses and the obligation to notify before the contract.

A) The terms and conditions of insurance contract Nos. 1 and 2 of the Defendants provide for the duty to inform the entire contract and the effect of the breach as shown in attached Forms 1 and 2.

B) However, the Plaintiff and the Deceased violated their duty to inform the Defendants of the subscription to the insurance contract Nos. 1 and 2 and the Defendants’ health examination accordingly, by notifying the Defendants of various false facts.

C) Therefore, the Defendants may terminate the insurance contract No. 1 and No. 2 in accordance with the above insurance terms and conditions, or restrict the guarantee thereof. Accordingly, the Defendants refused the Plaintiff’s claim for the payment of the insurance proceeds on September 23, 2015 and September 22, 2015, and the Defendants did not have the obligation to pay the Plaintiff the insurance proceeds upon the deceased’s death (In addition, the Defendant interesting life insurance should be deemed to have expressed their intent to terminate the second insurance contract through notification of refusal of payment of the above insurance proceeds and response in the instant lawsuit).

3) Summary of the assertion of the life insurance in Defendant Pacc under Article 4(3) and (5) of the Insurance Terms and Conditions

A) As to the 1st insurance contract, Article 4(3) and (5) of the Insurance Terms and Conditions of the Defendant P&C provides that, “The Plaintiff and the Deceased shall not pay insurance proceeds related to a disease if they were diagnosed or treated in the past due to a disease falling under the obligation to notify before the contract is entered into.” However, in the instant case, the Plaintiff and the Deceased did not notify the State P&C and the relevant waste cancer to the Defendant P&C life insurance in violation of the above obligation, and the Deceased died from the death of the pulmonary cancer, so the Defendant P&C life insurance may not pay insurance proceeds related thereto.

B) In relation to this, even if the insured was unaware of the accurate name of the disease, if he received medical treatment due to symptoms caused by the disease, and took out the insurance, and breached the duty of notification prior to the contract, the insurance proceeds related to the disease can be viewed as being rejected as a matter of course. However, the deceased did not notify even though he received medical treatment related to the lung cancer prior to the conclusion of the first insurance contract.

4) Summary of Defendant C&C’s assertion of the cancellation of the first insurance contract

Even if the first insurance contract is assumed to be valid, the Plaintiff and the Deceased, as seen earlier, by intentionally or by gross negligence, committed an obligation to inform the entire contract in the subscription phase and the health examination phase, thereby deceiving Defendant C&C life insurance. As such, Defendant C&C life insurance is revoked through a preparatory document dated September 20, 2017, on the ground of the above fraud.

B. Determination

1) Determination as to whether Article 103 of the Civil Act has been violated

A) Relevant legal principles

With respect to whether a policyholder has concluded a multiple insurance contract for the purpose of illegally acquiring insurance proceeds, without any evidence to prove such fact, such purpose may be confirmed based on the overall circumstances as occupation and property status of the policyholder, the timing and developments of concluding multiple insurance contracts, the scale and nature of the insurance contracts, and the circumstances after the conclusion of the insurance contract. In particular, if indirect facts are established such as: (a) the fact that a policyholder concluded an excessive insurance contract to pay a large amount of insurance premiums on a regular basis to the extent that it is difficult for him/her to bear in light of economic circumstances, such as his/her own revenues; (b) the circumstance that a policyholder actively concluded an excessive insurance contract without reasonable grounds for entering into such contract; (c) the circumstance that a policyholder actively paid an excessive amount of insurance premiums by actively entering into an insurance contract, such as subscription to a large number of insurance contracts by solicitation of an insurance solicitor; and (d) the circumstance that a considerable portion of revenues from a large number of insurance contracts with the security character, other than a savings insurance premium, were paid as the insurance premium; (d) the existence of the same type of insurance contracts and its occupation or income;

B) Determination

(1) According to the above facts, the deceased can be found to have already been suffering from lung cancer before entering into each insurance contract Nos. 1 and 2, and the degree of health of the deceased could have been ensured as the plaintiff in a marital relationship with the deceased.

(2) Furthermore, in light of the purport of the arguments in Eul's evidence 1, Eul evidence 1, Eul evidence 2, Eul evidence 1, Eul evidence 2, Eul evidence 6-1, Eul evidence 7, the plaintiff's total insurance premium of 250,000 won [=30,00,000 won for 220,000 won for 10,000 won for 20,000 won for 20,000 won for 20,000 won for 10,000 won for 20,000 won for 20,000 won for 1,00 won for 20,000 won for 20,000 won for 20,000 won for 20,000 won for 20,000 won for 20,000 won for 30,000 won for 20,000 won for 20,000 won for 15,00 won for each insurance contract.

(3) On the other hand, the following circumstances are as follows: (a) the Plaintiff entered into the first and third insurance contracts at the time of entering into the J’s confirmation (No. 9-1) with the following facts: (b) the Plaintiff did not first refuse to subscribe to the insurance contract by J and then entered into the insurance contract by 1 to 3 pursuant to the J’s active recommendation; (c) the Defendants were able to enter into the insurance contracts with strong savings benefits as to each insurance contract; and (d) the Plaintiff did not appear to have been subject to the first and 1 to 3 insurance contracts from 20 years before entering into the insurance contract by 14 years before entering into the insurance contract, based on the following circumstances: (a) the Plaintiff did not appear to have been subject to the Plaintiff’s first and 10 years before entering into the insurance contract by 20 years after entering into the insurance contract; and (b) the Plaintiff did not appear to have been subject to the Plaintiff’s first and second insurance contracts by 10 years after being informed of the results of the Plaintiff’s first insurance contract.

(4) Therefore, the defendants' above assertion is without merit.

2) Determination on the Defendants’ assertion on the breach of the duty of disclosure prior to the contract

A) If a policyholder or the insured fails to notify material facts intentionally or by gross negligence at the time of the insurance contract, or provides false notice, the insurer may terminate the contract within one month from the date he/she becomes aware of such fact (main sentence of Article 651 of the Commercial Act). In addition, the right to terminate the insurance contract as the right to terminate the contract is the formation period of the right to create the insurance contract, and whether the exclusion period has lapsed or not is determined by the court’s ex officio, even if there is no party’s assertion, the court shall investigate and determine it ex officio (see Supreme Court Decision 2013Da77638, May 14, 2015).

B) Meanwhile, as shown in the attached Forms 1 and 2, each of the terms and conditions of the Defendants (Article 14(1)2 of the Terms and Conditions in the case of Defendant C&C life insurance, and Article 15(1)2 of the Terms and Conditions in the case of Defendant C&C life insurance) provide that the company shall not terminate the contract or restrict its guarantee when one month or more has passed since it became aware of the fact that the contractor or the insured did not notify material facts to the contractor or the insured, and also provides for the method of termination or restriction of guarantee (Article 14(2) of the Terms and Conditions in the case of Defendant C&C life insurance and Article 15(2) of the Terms and Conditions in the case of Defendant C&C life insurance).

C) However, according to the method stipulated in Article 14(2) of the Terms and Conditions until the closing of argument in this Court, Defendant C&C did not assert and prove that the Plaintiff terminated the first insurance contract due to the violation of the duty of disclosure prior to the contract, or limited the guarantee of the insurance contract. In the case of Defendant C&C life insurance, Defendant C&C expressed its intention to terminate the second insurance contract through the preparatory document dated August 9, 2016. However, around June 17, 2016, the date for the second pleading of the first instance court (the second pleading of the first instance court), Defendant C&C life insurance did not know or prove that C&C’s order to submit documents was issued on April 26, 2016, the Seoul National Health Insurance Corporation’s head office in Seoul National Health Insurance Corporation (hereinafter “Seoul National Health Insurance Corporation”) and did not notify the deceased of material health conditions of his/her own health by intention or gross negligence. Thus, it is reasonable to deem that Defendant C&C life insurance after the lapse of the aforementioned period of the termination right through the legal document.

D) Therefore, this part of the Defendants’ assertion on the premise that the Defendants terminated the insurance contract Nos. 1 and 2 or limited the guarantee on the grounds of the Plaintiff and the Deceased’s breach of duty of disclosure is without merit without any further review (the content of No. 1 B and the written reply submitted by the Defendant interesting State Life Insurance to the first instance court cannot be deemed to be “the Defendant interesting State Life Insurance expressed its intention to terminate the second insurance contract against the Plaintiff on the grounds of the Plaintiff’s breach of duty of notification prior to the contract between the Plaintiff and the Deceased.” This part of the Defendant interesting State Life Insurance cannot be accepted).

3) Determination as to the assertion of the life insurance in Defendant C&C under Article 4(3) and (5) of the Insurance Terms and Conditions

A) According to the statement No. 3-1 of the evidence No. 3-1, it can be acknowledged that Article 4 (3) and (5) of the Insurance Terms and Conditions of the Life Insurance Contract No. 1 provides that if Defendant Pacc with respect to the insurance contract is diagnosed or treated in the past (which refers to the period subject to notification of the relevant disease) due to a disease that falls under the obligation to inform prior to the contract (which refers to the important matters), it shall not pay insurance money related to the disease out of the insurance money as provided in Article 3 (Grounds for Payment of Insurance Money).

B) Before the Deceased subscribed to the first insurance contract, the fact that he received treatment from D as a part of the national part on the inner part and the right upper part of D is as seen earlier, and according to the evidence A No. 9, it is presumed that the symptoms of the national part of the national part are caused by the occurrence of the serum by the lung cancer.

C) However, according to the evidence evidence No. 1, the disease explicitly stated as the duty to notify prior to the contract of the insurance contract No. 1 is limited to 10 medical practice during the last five years, 'the disease that is subject to the duty to notify prior to the contract.' In light of the evidence No. 1, it cannot be deemed that the part part of the national part of the national part of the contract, which is merely the symptoms caused by the disease, is the disease corresponding to the duty to notify prior to the contract under the letter of subscription, and it cannot be deemed that the deceased was diagnosed or treated with the disease corresponding to the duty to notify prior to the contract.

D) In addition, according to the purport of evidence No. 4, the deceased’s statement and the entire argument as seen above, on September 3, 2014, it can be acknowledged that he was judged as a normal by the D Council members by conducting paper-related tests, blood tests, urine tests, etc., and that he was issued a written request for medical treatment for a superior hospital hospital. In light of this, it is difficult to conclude that the plaintiff and the deceased knew or could have known that the cause of the son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son

E) In addition, there is no evidence to prove that the Deceased received treatment with respect to waste cancer from October 13, 2014 at the Korea Atomic Energy Hospital, and received diagnosis or treatment with respect to waste cancer before entering into the first insurance contract.

F) In light of the above circumstances, it is difficult to view that Defendant C’s life insurance may refuse to pay the death benefit pursuant to Article 4(5) of the Terms and Conditions solely on the ground that the deceased received treatment from D’s members as a part of the State’s body, prior to the conclusion of the first insurance contract. Therefore, this part of the allegation regarding Defendant C’s life insurance is without merit.

4) Determination as to Defendant C&C’s assertion on the cancellation of the first insurance contract

A) As seen earlier, it is difficult to deem that the Plaintiff and the Deceased violated their duty of notification prior to the contract.

B) Therefore, the Plaintiff and the Deceased’s assertion on this part of the life insurance on the premise that they violated the duty of notification prior to the contract is not reasonable without any need to examine the different points.

4. Scope of the Defendants’ obligation to pay

Therefore, the Plaintiff is obligated to pay damages for delay calculated at the rate of 300,000,000 per annum under the Commercial Act from January 14, 2016 to October 21, 2016, which is the date following the delivery of a copy of the complaint in this case against the Defendants, to the Plaintiff, for the life insurance of the Defendant C&C, KRW 300,000,000, and KRW 80,000 per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the following day to the day of complete payment.

5. Conclusion

Therefore, each claim against the Plaintiff against the Defendants shall be accepted within the scope of the above recognition, and each claim shall be dismissed as without merit. Since the judgment of the first instance court is justifiable, the appeal filed by the Defendants is dismissed as it is without merit. It is so decided as per Disposition (On the other hand, in light of the various circumstances as seen earlier, even if the Defendant C&C’s life insurance takes into account the content of the reference document submitted to this court on November 28, 2017, it is difficult to gather the above decision after considering the content of the reference document submitted by this court).

Justices Kim Jong-chul

Judges Kim Yong- For

Judges Cho Young-soo

1) The reasoning of the first instance judgment and the factual purport are the same.

2) As of the time of subscription, the sum of the Defendants’ life insurance (i.e., KRW 500 million for the life insurance period + KRW 100 million for the life insurance period in 10 years + KRW 300 million for the life insurance period in 10 years), Defendant interesting country life insurance ( KRW 250 million for the life insurance of Defendant interesting country), and the co-defendants of the first instance court’s agricultural life insurance (total of KRW 250 million), Samsung Fire Maritime Insurance (total of KRW 100 million), and Hyundai Marine Fire Maritime Insurance (total of KRW 50 million)

3) Article 4(5) of the General Terms and Conditions for Life Insurance and Article 4(3) of the General Terms and Conditions for Life Insurance are also the same.

A person shall be appointed.

A person shall be appointed.