2013Da77638 Insurance proceeds

Dong New Construction Corporation

Seoul Guarantee Insurance Co.

1. A;

2. B

3. C.

4. D;

5. E.

Seoul Central District Court Decision 2012Na48502 Decided September 13, 2013

May 14, 2015

The judgment of the court below is reversed, and the case is remanded to the Seoul Central District Court Panel Division.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. If a policyholder or the insured fails to notify material facts intentionally or by gross negligence at the time of the conclusion of the insurance contract, or makes a false notification, the insurer may terminate the insurance contract within one month from the date when he/she becomes aware of such fact (main sentence of Article 651 of the Commercial Act). In addition, since the right to terminate the insurance contract is the formation of the right to terminate the insurance contract, the exclusion period is the exclusion period, and whether the exclusion period has lapsed, the court should investigate and determine the exclusion period ex officio, even if there is no party’s assertion. Even if the parties did not assert the lapse of the exclusion period and the fact by the time of closing argument at the trial at the court of final appeal, they may newly assert and prove it at the court of final appeal (see, e.g., Supreme Court Decisions 9Da50712, May 14, 1991; 9Da50712, Nov. 28, 200; 10, 13, 2000).

In addition, in the event that an insurer terminates a guarantee insurance contract, which is a damage insurance contract for a third party, for which the insurer takes over the compensation for the damage suffered by the obligee due to the obligor’s default, on the ground of a breach of duty of disclosure, the insurer shall, within the exclusion period, express his/her intention of termination to the other party to the contract or his/her heir (or his/her agent) and, barring any special circumstance, such as that the insurer separately provided for in the insurance contract, expressed his/her intention of termination to the beneficiary of the insurance money is not effective (see, e.g., Supreme Court Decisions 87Meu2973, Feb. 14, 1989; 200Da19281, Nov. 8, 2012)

2. (1) The lower court concluded a subcontract agreement with the Plaintiff on April 4, 2008 (hereinafter referred to as the “instant subcontract agreement”) to provide 200 million won (hereinafter referred to as the “instant subcontract”) that the Plaintiff had not entered into the said subcontract agreement with the Defendant on the ground that it had not entered into the said 70 billion won contract for the instant 200,000 won (hereinafter referred to as the “instant 205,000,000 won”) and had not entered into the said subcontract agreement for the said 205,000 won (hereinafter referred to as the “20,000,0000 won”) and had not entered into the said contract for the instant 30,000 won (hereinafter referred to as the “20,000,000 won”) and had not entered into a guarantee agreement for the instant subcontract for the said 20,000 won (hereinafter referred to as the “20,000 won of the instant contract for the instant construction works”).

3. A. However, according to the above legal principles, in order to terminate the second performance of obligation under Article 651 of the Commercial Act and the guarantee contract for advance payment, the Defendant should make an expression of intent to terminate the contract within one month from the date on which the Defendant became aware of the circumstances for the reduction of the construction price of the instant case, the reason for the breach of obligation, and within three years from the date of concluding the contract for the second performance and the guarantee contract for advance payment.

B. However, the declaration of termination on the ground of the breach of duty of disclosure acknowledged by the court below was delivered to the plaintiff on February 7, 2012 by the defendant's written reply as of February 9, 2012, which was submitted to the plaintiff during the lawsuit of this case. Thus, it is not a counter-party to the lawsuit of this case. Thus, barring any special circumstance, such as where the above written reply was sent to the Museum or there was a separate agreement allowing the plaintiff as the insured to express his/her intent of termination under the second implementation and advance payment guarantee agreement, it cannot be said that the declaration of termination was made in force under the

In addition, the above reply only provides for the termination of the second advance payment guarantee contract, and there is no provision that the second advance payment guarantee contract will be terminated, and there is no other data about the defendant's assertion that the second advance payment guarantee contract will be terminated on the ground of the breach of duty of disclosure, or that he made a separate declaration about the termination of the second advance payment contract to the community.

Therefore, solely based on the circumstances in which the foregoing reply was served on the Plaintiff, it cannot be deemed that the Plaintiff complied with the exclusion period stipulated in Article 651 of the Commercial Act, as the instant complaint was served on the Defendant within three years from the date of concluding the second performance and the guarantee contract for advance payment, and as the Defendant had known of the circumstances in which the instant construction payment was reduced, within one month from September 2012, which was served on the Defendant, and as a result, a valid declaration of termination was made on the ground of violation of the duty to notify the circumstances in which the instant construction payment was reduced to the Plaintiff. Furthermore, according to the records, it is sufficient to view that, even if the instant construction payment was reduced to KRW 715 million, which was initially reduced to KRW 62,910,00,000, the amount of the instant advance payment was reduced to KRW 200,000,000,0000,0000,000,0000 won, the remaining advance payment was already cancelled to the Plaintiff.

4. Nevertheless, without sufficiently examining these circumstances, the lower court determined that the second performance and the advance payment guarantee contract were lawfully terminated by the Defendant’s declaration of termination on the ground of the breach of duty of disclosure under Article 651 of the Commercial Act on the ground of the termination by the foregoing reply.

Therefore, in so determining, the court below erred by misapprehending the legal principles as to the exclusion period of the termination right of the insurance contract under Article 651 of the Commercial Act and the opposing party of the declaration of termination, thereby failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment.

5. Therefore, without examining the remaining grounds of appeal, we reverse the judgment below, and remand the case to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-young

Justices Lee In-bok

Justices Kim In-bok, Counsel for the defendant

Justices Go Young-young