[1] Where an insurer concludes an insurance contract in violation of the duty to specify and explain the terms of the insurance contract, whether the insurer can assert the contents of the insurance contract as the content of the insurance contract (negative)

[2] Where a policyholder is sufficiently aware of the contents of the insurance terms and conditions, whether the insurer is obligated to explain such terms and conditions to the insurer (negative)

[3] In a case where a notice inviting subscription for an insurance contract is introduced only abstractly and generally, whether the delivery of such notice can only be deemed as fulfilling the insurer's duty to explain the terms and conditions (negative with qualification)

[4] Where a policyholder fails to exercise the right to cancel a contract within the period stipulated in Article 638-3(2) of the Commercial Act, whether the policyholder is unable to assert the legal effect of the insurer’s breach of the duty to explain or the insurer’s breach of the duty to explain is cured (negative)

[5] The case holding that the insurer's duty to explain the insurer's exemption clause cannot be deemed to have fulfilled the insurer's duty of explanation only on the basis of the fact that the insurer sent a summary of the insurance clause and the subscription form to the policyholder in the accident insurance contract

[1] In accordance with Article 638-3(1) of the Commercial Act and Article 3 of the Regulation of Standardized Contracts Act, when an insurer concludes an insurance contract, the insurer is obligated to specify and explain the important contents of the insurance contract, such as the content of the insurance contract, the system of insurance premium rates, changes in the terms and conditions of the written subscription, the insurer's reasons for exemption from liability, etc. Therefore, if the insurer concludes the insurance contract in violation of such duty to specify and explain the terms and conditions, the insurer cannot claim the contents of the terms and conditions as the content

[2] Even if matters falling under the important contents of the insurance terms and conditions are sufficiently known to the policyholders or their agents, if the terms and conditions are immediately subject to the contract and have binding force on the parties, the insurer need not explain separately the contents of the terms and conditions to the policyholders or their agents.

[3] The contents of the insurance contract are introduced abstractly and generally on the notice inviting subscription for an insurance contract, and the contents of the contract are general and common in the insurance contract in question, so long as the contents of the contract are not the same as expected sufficiently for policyholders or as incidental to the contents of the contract in question, it cannot be said that the delivery of such notice does not require the insurer to explain the terms of the contract, or that it is not necessary for policyholders to recognize the duty to explain because the insurer has fulfilled his/her duty to explain the terms of the contract, or the policyholder has become aware of the contents of the contract. Such legal principles as to the duty to explain and explain of the insurance contract do not change because the insurance premium rate

[4] Where an insurer violates the duty to specify and explain the terms and conditions pursuant to Article 638-3(2) of the Commercial Act, it is apparent that the policyholder's right to cancel the terms and conditions within one month from the date of establishment of the insurance contract is only the right given to the policyholder and does not have any obligation. Article 638-3(2) of the Commercial Act is not a special provision excluding the application in relation to Article 3(3) of the Act on the Regulation of Terms and Conditions. Thus, even if the policyholder did not cancel the insurance contract, the legal effect of the insurer's breach of the duty to explain is extinguished, and thus the policyholder cannot assert the legal effect of the insurer's breach of the duty

[5] The case holding that in an accident insurance contract concluded by mail order, the insurer's duty to explain the terms and conditions cannot be deemed to have fulfilled its duty of explanation on the insurer's terms and conditions merely with a notice stating that the insurer introduced a summary of the terms and conditions and confirming the case of an accident involving exemption from liability to the policyholder

[1] Article 638-3 (1) of the Commercial Act; Article 3 of the Regulation of Standardized Contracts Act / [2] Article 638-3 (1) of the Commercial Act; Article 3 of the Regulation of Standardized Contracts Act / [3] Article 638-3 (1) of the Commercial Act; Article 3 of the Regulation of Standardized Contracts Act / [4] Article 638-3 (2) of the Commercial Act; Article 3 of the Regulation of Standardized Contracts Act / [5] Article 638-3 (1) of the Commercial Act

[1] [2] [4] Supreme Court Decision 98Da32564 delivered on November 27, 1998 (Gong1999Sang, 41) / [1] Supreme Court Decision 97Da4494 delivered on September 26, 1997 (Gong1997Ha, 327), Supreme Court Decision 97Da47255 delivered on April 10, 1998 (Gong1998Sang, 1283), Supreme Court Decision 98Da14191 delivered on June 23, 1998 (Gong198Ha, 1956) / [2] Supreme Court Decision 96Da5314 delivered on March 14, 1997 (Gong1997, 1997Sang, 195) / [30Da98497 delivered on April 197, 198 (Gong1997) 98Da39479897, Apr. 197, 1997

Cgna Fire and Marine Insurance Co., Ltd. (Attorneys Jin full-time et al., Counsel for the plaintiff-appellant)

Defendant-Counterclaim (Law Firm continental, Attorneys Ba-hee et al., Counsel for the defendant-Counterclaim plaintiff-appellant)

Seoul High Court Decision 98Na5052, 5069 delivered on July 22, 1998

The appeal is dismissed. The costs of appeal are assessed against the plaintiff (Counterclaim defendant).

We examine the grounds of appeal.

The First Ground for Appeal

In accordance with Article 638-3(1) of the Commercial Act and Article 3 of the Regulation of Standardized Contracts Act, an insurer is obligated to provide the policyholder with specific and detailed explanation and explanation of the important contents of the insurance contract, such as the content of the insurance contract, the insurance premium rate system, changes in the terms and conditions of the insurance application, and reasons for the exemption of the insurer from liability. Thus, if the insurer concludes the insurance contract in violation of such duty to specify and explain the terms and conditions, it cannot be asserted as the content of the insurance contract (see, e.g., Supreme Court Decisions 98Da14191, Jun. 23, 1998; 95Da53546, Mar. 8, 1996): Provided, That even if the policyholder or its agent is sufficiently aware of the important contents of the insurance contract, it is not necessary for the insurer to provide such explanation and explanation of the terms and conditions to the policyholder or its agent, and thus, it is not necessary to provide such explanation and explanation differently from the case of the insurance contract.

According to the reasoning of the judgment of the court below, the court below stated that the plaintiff's insurance period is one year between the non-party who is the defendant's deceased's father, the contract of the injury insurance of this case with the above deceased and the beneficiary of the insurance of this case was sent to the above deceased who is the card member through the foreign exchange card company, which is the agent, first of all, in the form of injury insurance guide and accident insurance subscription form. On the back side of the above notice, "any dangerous movement such as "no compensation" was compensated", and this notice was introduced to the insurer at the bottom of the above insurance policy. This notice was stated to the effect that "this notice" is not a separate statement from the insurance policy of this case's non-party's non-party or non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's explanation obligation or non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's explanation obligation.

The Second Ground of Appeal

If an insurer violates the duty to specify and explain the terms and conditions under Article 638-3(2) of the Commercial Act, it is clear that the policyholder's right to cancel the terms and conditions within one month from the date of the formation of the insurance contract is the right given by the policyholder and does not have any obligation. Article 638-3(2) of the Commercial Act does not include any special provision excluding the application in relation to Article 3(3) of the Regulation of Standardized Contracts Act. Thus, even if the policyholder did not cancel the insurance contract, the policyholder cannot assert the legal effect of the insurer's breach of the duty to explain due to the termination of the legal effect of the insurer's violation of the duty to explain, or the defect of the insurer's violation of the duty to explain is not cured (see, e.g., Supreme Court Decisions 96Da4893, Apr. 12, 1996; 98Da32564, Nov. 23, 198; 98Da14191, Jun. 23, 1998).

Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Jae-soo (Presiding Justice)