(영문) 울산지방법원 2014.10.23.선고 2013가합7024 판결

1. It is confirmed that there is no obligation to refund premiums for each insurance contract listed in the separate sheet of insurance contract against the defendant of the plaintiff.

2. The costs of the lawsuit are assessed against the defendant.

Purport of claim

It is confirmed that there is no obligation to return insurance premiums for each insurance contract listed in the separate sheet of insurance contract against the defendant.

Reasons

1. Basic facts

A. From June 15, 2012 to February 27, 2013, the Defendant concluded 12 insurance contracts between the Plaintiff and the policyholder, through B, who is the Defendant’s wife and the insurance solicitor belonging to Dlimf design, as shown in the separate sheet of insurance contract (hereinafter referred to as “each insurance contract listed in the separate sheet of insurance contract”, refers to each insurance contract of this case, and hereinafter referred to as “first insurance contract”) as shown in the separate sheet of insurance contract.

C. The instant insurance contract and the instant insurance contract are life insurance contracts with the purport that the Plaintiff’s beneficiary, the insured’s surviving life until the expiration of the insurance period, and the Plaintiff’s death payment when the insured died during the insurance period. From the date of conclusion of each of the instant insurance contracts to March 2013, the Defendant paid KRW 406,140,000 in total to the Plaintiff as the insurance premium under each of the instant insurance contracts (hereinafter “instant insurance premium”).

D. Under the premise of each of the instant insurance contracts, the Defendant obtained a total of KRW 102,640,000 from the Plaintiff on February 1, 2013, and KRW 27,170,000 on August 27, 200 of the same year, and KRW 34,470,000 on March 29 of the same year, and KRW 102,640,00 on a standardized contract loan.

[Ground of recognition] A without dispute, Gap evidence Nos. 1 through 3, Eul evidence Nos. 1 through 3 (including each number), the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff;

1) Each of the instant insurance contracts has the nature of savings insurance, and cannot be viewed as life insurance because it is not primarily for the payment of the death insurance. In addition, the “insurance contract covering the death of another person” as stipulated in Article 731 of the Commercial Act refers to cases different from the policyholder and the insured. Since B concluded each of the instant insurance contracts representing the defendant as the policyholder and the insured on behalf of the defendant, each of the instant insurance contracts is an insurance contract covering the “the death of the defendant as the insurance accident,” and all of the policyholders and the insured do not constitute an insurance contract covering the “the death of another person” as the insurance accident

2) Even though each of the instant insurance contracts is life insurance for another person, all of the instant insurance contracts concluded by the Defendant on behalf of the Defendant without authority upon receiving the terms and conditions loan, etc. Accordingly, each of the instant insurance contracts is valid without the written consent of the Defendant. Therefore, the Plaintiff is not obliged to return unjust enrichment (the obligation to return the premium) incurred to the Defendant on the ground that the instant insurance contracts are invalid as life insurance for another person without the consent of the

3) Even if each of the instant insurance contracts is an insured accident against the death of another person and is null and void without the written consent of the defendant, the plaintiff is not liable to return the insurance premium in accordance with Article 648 of the Commercial Act, since it was malicious or grossly negligent in concluding each of the instant insurance contracts to the defendant.

4) Since the Defendant responded to the Plaintiff’s monitor order that he had explained the content of the insurance contract and concluded each of the instant insurance contracts, it is not permissible for the Plaintiff to assert that the Defendant had no choice but to believe that the Defendant intended to maintain each of the instant insurance contracts, and to seek the return of the premium in violation of the principle of trust and good faith.

5) Since the Defendant conspired with, or aided and abetting B to cause damage to the Plaintiff by concluding each of the instant insurance contracts, the Defendant is obligated to compensate the Plaintiff for the damage. Accordingly, the above damages and the Defendant’s loans based on the premise of each of the instant insurance contracts shall be deducted from the insurance premium to be refunded to the Plaintiff.

3. Determination

A. Whether each of the instant insurance contracts is valid

1) Whether each of the instant contracts constitutes a "life insurance contract"

Article 731 of the Commercial Act provides that the term "insurance contract which covers the death of another person as an insured event" is not limited to the insurance contract which provides only the death of the other person as an insured event, and even if the main purpose of the insurance contract is different from that of the other person, if the death of the other person is determined as one of the grounds for payment of insurance money, it constitutes life insurance of the other person. As seen earlier, the defendant's death of the insured of each of the insurance contracts of this case is stipulated as the grounds for payment of insurance money. Thus, even if each of the insurance contracts of this case is mainly in

2) Whether each of the instant insurance contracts constitutes an insured event against the death of another person, or Article 731(1) of the Commercial Act is a mandatory provision prepared to eliminate the risk of gambling insurance, the risk of murder of the insured, and the risk of infringement on good morals in an insurance contract covering the death of another person as an insured event. A life insurance contract concluded by a third party as the policyholder and the insured without the consent of another person constitutes a life insurance contract of another person, notwithstanding the name of the policyholder (see, e.g., Supreme Court Decision 2009Da7407, Feb. 11, 2010). In addition, under Article 731(1) of the Commercial Act, the time when the insured must express his/her consent in writing in a life insurance contract of another person until the time the insurance contract is concluded is null and void, and thus, the insurance contract becomes null and void if there is no written consent of the insured at the time of the conclusion of the life insurance contract of another person, and even if the insured has confirmed the already invalidated insurance contract, it cannot become effective (see, etc.

In full view of the purport of the arguments in Gap evidence 1-1 to 12, Eul evidence 1-1 to 8, and Eul evidence 3, Eul concluded each of the insurance contracts in this case with the defendant's husband's name as the insured at the time of entering into each of the insurance contracts in this case, and it is recognized that other employees belonging to the Dalim F Financial Design Co., Ltd. entered into each of the contracts in this case with the defendant as the policyholder and the insured without the defendant's consent, and that the life insurance contract that Eul entered into with the defendant as the policyholder and the insured without the defendant's consent falls under the life insurance contract of "other persons" under Article 731 (1) of the Commercial Act.

3) Sub-committee

As seen earlier, the fact that the Defendant did not express his/her intent to consent in writing at the time of the formation of each of the instant insurance contracts is as seen earlier. Accordingly, each of the instant insurance contracts is deemed null and void on a conclusive basis, and even if the Defendant, the insured, ratified the insurance contract that was already null and void, it is merely a ratification after the conclusion of the insurance contract, and thus, each of the instant insurance contracts and the contractual parties, which were null and void, cannot be deemed null and void by ratification.

Therefore, the plaintiff's claim based on the premise that each of the contracts of this case does not constitute another person's life insurance contract is valid is without merit.

B. Whether the Plaintiff’s return of unjust enrichment occurred

1) As long as the Plaintiff’s respective insurance contract of this case’s return of unjust enrichment is null and void, the Plaintiff’s insurance premium paid from the Defendant under each insurance contract of this case has no legal grounds, and the Plaintiff is obligated to return the premium to

2) Whether there was bad faith or gross negligence to the Defendant

On the other hand, the plaintiff alleged that it was not possible to claim the return of the premium to the plaintiff under Article 648 of the Commercial Act because the defendant knew or was grossly negligent in not knowing that each of the insurance contracts of this case was concluded. Thus, the defendant could not claim the return of the premium to the plaintiff under Article 648 of the Commercial Act, i.e., the following circumstances that can be seen by considering the overall purport of each of the above arguments, i.e., the defendant was the spouse B of each of the insurance contracts of this case, ii the defendant continuously concluded the insurance contract for about about 10 months from June 15, 2012 to February 27, 2013 00, 000 won each of the insurance contracts of this case, 00 won each of the above insurance contracts of this case, 00 won each of the insurance contracts of this case, 00 won each of the above insurance contracts of this case, 00 won each of the insurance contracts of this case, 00 won + 100 won each of this case's 200.

D. Sub-committee

Therefore, there is no obligation to return the payment premium upon the invalidity of each of the instant insurance contracts against the Defendant. As long as the Defendant contests this issue, the Plaintiff has a benefit to seek confirmation.

4. Conclusion

Therefore, the plaintiff's claim of this case is justified and it is so decided as per Disposition.