KT Co., Ltd. (Law Firm Shinh, Attorney Park Jong-soo, Counsel for the plaintiff-appellant)

Seoul Guarantee Insurance Co., Ltd. (Attorney Choi Han-chul, Counsel for defendant-appellant)

April 20, 2010

Seoul Central District Court Decision 2008Gadan415432 Decided September 9, 2009

1. Of the judgment of the court of first instance, the part against the defendant ordering payment of KRW 75,187,815 to the plaintiff and 6% per annum from December 9, 2008 to September 9, 2009, and 20% per annum from the next day to the day of complete payment, shall be revoked, and the plaintiff's claim corresponding to the revoked part shall be dismissed.

2. The defendant's remaining appeal is dismissed.

3. 1/10 of the total costs of litigation shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

1. Purport of claim

The defendant shall pay to the plaintiff 79,900,000 won with 20% interest per annum from the day after the delivery of a copy of the complaint of this case to the day of complete payment.

2. Purport of appeal

The part of the judgment of the first instance against the defendant shall be revoked, and the plaintiff's claim corresponding to the above revocation shall be dismissed.

1. Basic facts

A. Conclusion of a performance guarantee insurance contract between the Vietnama Co., Ltd. (hereinafter “Vibera”) and the Defendant

(1) On October 19, 2006, Vietnam concluded a guarantee insurance contract (payment omitted; hereinafter “instant insurance contract”) with the Defendant, with the content that “the insured” is “the Plaintiff,” “the amount of insurance coverage is KRW 100,000,000,” “from October 19, 2006 to October 18, 2007,” and the content of the guarantee is “payment guarantee under the Telecommunications Services Agreement between the Vietnam and the Plaintiff.”

(2) On October 9, 2007, Vietnam War concluded a contract for the renewal of the instant insurance contract (hereinafter “instant renewal contract”) with the Defendant with the term “40,000,000 won” and “from October 19, 2007 to October 18, 2008,” and concluded a contract for the renewal of the instant insurance contract (hereinafter “instant renewal contract”) between the Defendant and the Defendant, and the term “the obligation arising from the omission of the former securities number and the obligation within 90 days from the day following the end of the insurance period shall be guaranteed within the insurance coverage amount of the instant securities, and the insurance liability of the former securities shall be extinguished” (hereinafter “instant special contract”).

(b) Trade between the Vietnamese and the plaintiff;

(1) After submitting to the Plaintiff the performance guarantee insurance policy issued by the Defendant pursuant to the instant insurance contract and the instant renewal contract, Vietnam had been provided with telecommunications services by the Plaintiff. The part related to the instant case among the charges that the Vietnamese did not pay for telecommunications services provided by the Plaintiff is as follows.

The unpaid amount (units) from June 1, 2007 to June 30, 2007 on June 30, 2007, to June 30, 2007 on the payment period of the table 2007-07-3134,05, 380 from September 1, 2007 to September 30, 2007 to September 7, 505, 8403, 207-11-267, 912,470 on October 1, 207 to October 31, 2007.

(2) The Plaintiff claimed KRW 100,000,000 for the insurance money under the instant insurance contract on September 5, 2008 on the ground that the Vietnam War did not pay the Plaintiff the telecommunications service charges of KRW 340,631,820 from October 2007 to June 2008. On September 11, 2008, the Plaintiff claimed KRW 40,000,000 for the insurance money under the instant renewal contract.

(3) However, around October 24, 2008, the Defendant paid only KRW 40,000,000 under the instant renewal contract to the Plaintiff on the ground that the obligation to pay the insurance money under the instant insurance contract was extinguished in accordance with the instant special agreement and the terms and conditions.

C. The main contents of the terms and conditions relating to the instant insurance contract and renewal contract are as follows.

General Terms and Conditions

Article 1 (Compensation for Loss)

The defendant shall compensate for the damage suffered by the insured who is the obligee for the matters entered in the insurance policy and in accordance with the terms and conditions, due to the failure of the policyholder, as the obligor, to perform the obligation (which shall be limited to the obligation within the insurance period) stipulated in the contract entered in the insurance policy (hereinafter referred to as the "main contract").

Article 10 (Prohibition of Termination, etc. of Insurance Contract)

The policyholder or the defendant may not terminate the insurance contract at will without the consent of the insured (the plaintiff): Provided, That this shall not apply where he/she obtains the consent of the insured before the occurrence of the insurance accident, or proves that the company's liability has ceased.

Additional Risk Cover Clause

Article 1 (Scope of Application)

This Special Clause applies to a supply contract in which the contract entered into an insurance policy (hereinafter referred to as “main contract”) continues to provide an article or service for the duration of the prime contract, and the occurrence and performance of the obligation continues to be performed.

Article 2 (Compensation for Loss)

(1) In addition to compensating for losses under Article 1 of the General Terms and Conditions for Performance Guarantee Insurance, the defendant shall be bound to compensate for losses sustained by the insured who is the creditor, due to the failure of the payment date to repay his/her obligations within 90 days after the date following the expiration of the insurance period, within the insurance period specified in the insurance policy.

(2) Where a renewed insurance contract has been concluded within the insurance period of the insurance contract attached to this special agreement, the liability of the company for the insurance immediately preceding the renewed insurance contract shall be terminated, and the liability incurred prior to the commencement of the insurance period of the renewed insurance contract shall be covered up to the amount of the renewed insurance

[Grounds for Recognition: Evidence Nos. 1 through 10, Evidence No. 1 through 2-2 of Evidence No. 1-2, and the purport of the whole pleadings]

2. Determination:

A. Determination on the cause of the claim

According to the above facts, the defendant, barring any special circumstance, shall be liable to the plaintiff for insurance coverage amounting to KRW 100,00,000, which is the insurance coverage amount under the insurance contract of this case, within the extent of KRW 100,000,000, and within the insurance period of the insurance contract of this case from October 19, 2007 to 90 days after the date following the expiration of the insurance period of the insurance contract of this case, 75,187,815 won [34,05,380 won for June 16, 2007 + 7,505,840 won for September 7, 2007 + 33,626,595 won for damages for delay from October 1, 207 to 16, 207 x 10,000 won for the unpaid insurance period of the insurance contract of this case x 20,001.

B. Judgment on the defendant's defense

(1) Defendant’s defense

(A) Upon entering into the instant renewal contract on October 9, 2007, which is within the insurance period of the instant insurance contract, the Defendant and the Vietnam War concluded the instant renewal contract, according to Article 2(2) of the Terms and Conditions of Additional Risk Liability (hereinafter “Terms and Conditions of the instant insurance contract”) and the terms and conditions of the instant renewal contract, the Defendant’s liability to pay the insurance proceeds under the instant renewal contract terminates, and the Defendant was liable to pay the insurance proceeds only within the limit of KRW 40 million for the obligations incurred prior to the commencement of the insurance period of the instant renewal contract.

(B) Even if the terms and conditions of this case and the special terms and conditions of this case cannot change or extinguish the plaintiff's rights, the plaintiff received each performance guarantee insurance policy containing the terms and conditions of this case and the special terms and conditions after the conclusion of the renewal contract of this case, and did not raise any objection to the defendant until he claims insurance money. Therefore, it is reasonable to deem that the terms and conditions of this case and the special terms and conditions of this case were implicitly approved

(C) Therefore, insofar as the Defendant paid to the Plaintiff the total amount of KRW 40,000,000,000, which is the purchase amount of insurance under the instant renewal contract, it shall be deemed that there is no obligation to pay insurance that the Plaintiff bears.

(2) Determination:

(A) According to the terms and conditions of this case, if a renewal insurance contract was concluded within the insurance period of the instant insurance contract, the company's liability for the immediately preceding insurance contract shall be terminated, and the defendant shall compensate for the obligations incurred before the commencement of the insurance period of the renewed insurance contract within the limit of the renewed insurance amount. The defendant concluded the instant renewed insurance contract between the Vietnam and the Vietnam, but entered into the instant renewed insurance contract on October 9, 2007, which is within the insurance period, and changed the insurance amount to KRW 40,000,000, and the fact that the plaintiff received the guaranty insurance policy described in the terms and conditions of this case and the special terms and conditions from the Vietnam date.

(B) However, as to the validity of the terms and conditions of this case and the special agreement of this case, it can be considered that the amount of insurance coverage in performance guarantee insurance contract falls under the main payment of which extent the defendant would pay insurance money to the insured, and the insured is in a position of creditor under the contract of guarantee. Thus, if there are circumstances to change disadvantage to the contents of such payment or guarantee obligation disadvantageously, it is the basic legal principle that the insured who is the right holder should obtain the consent of the insured (Article 639 of the Commercial Act also has the nature of the contract for a third party. Article 541 of the Civil Act provides that the contract of this case shall not be changed or terminated after the third party's rights have occurred through a contract for a third party). Since the contract of this case can be changed to the disadvantage of the insured as well as the disadvantage of the insured by agreement between the policyholder and the insurer, the contract of this case can be changed to the disadvantage of the insured, and therefore, the contract of this case can not be seen as null and void because it constitutes the defendant's special agreement of this case.

C. Sub-committee

Therefore, the defendant is obligated to pay to the plaintiff 75,187,815 won insurance money based on the insurance contract of this case and damages for delay calculated by the rate of 6% per annum under the Commercial Act from September 9, 2009, which is the day following the delivery date of a copy of the complaint of this case, to September 9, 2009, and 20% per annum under the Act on Special Cases concerning Expedition, etc. of Legal Proceedings from the next day to the day of full payment.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified within the above scope of recognition, and the remaining claims are dismissed without merit. Since the part against the defendant who ordered payment in excess of the above recognized amount among the judgment of the court of first instance which partially different conclusions is unfair, it is revoked and the plaintiff's claim corresponding to the above revoked part is dismissed, and the defendant's remaining appeal is dismissed as it is without merit. It is so decided as per Disposition.

Judges Jin-hun (Presiding Judge)