2016 Ghana 308674 Insurance proceeds

A person shall be appointed.

Co., Ltd.

September 27, 2016

October 18, 2016

1. The plaintiff's primary and conjunctive claims are all dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

Main and Preliminary, the Defendant’s KRW 50,000,000, and the Plaintiff’s as to these KRW 14 December 2015.

From the date of service of the duplicate of the complaint of this case to the date of service of the duplicate, 6% per annum and 15% per annum from the following day to the date of complete payment.

The payment of each proportion of money shall be made.

1. Basic facts

A. On August 29, 2014, the Plaintiff entered into an insurance contract with the Defendant (hereinafter “instant insurance contract”) with the introduction of an insurance solicitor B who belongs to the Defendant’s insurance agency. The name of the insurance product: (less) Alphflusss Guarantee Policy 1407,07: Plaintiff ○○ Insured: (the Plaintiff’s father, DNA) insurance period: From August 29, 2014 to August 29, 2052: The beneficiary of the death insurance contract: The Plaintiff, the beneficiary: (a) the content of guarantee of the insured: (the general injury injury) the basic contract; (b) one million won; (c) the death of the general injury death; and (d) the status of the insurance solicitor’s agent at the time of the instant insurance contract without the consent of the insurance solicitor at around June 23, 2014.

C. After that, on December 14, 2015, the insured C died of the death of the head of the main prison, and the Plaintiff demanded the Defendant to pay KRW 50 million of the death insurance amount due to the instant insurance contract, but the Defendant refused to pay the insurance amount on the ground that the said insurance contract is null and void.

【Uncontentious facts, Gap’s 1, 2, 6 evidence, Eul’s 1 through 8, each entry of evidence Nos. 12, witness B’s testimony, and the purport of the whole pleadings

2. Judgment as to the main claim

A. Summary of the parties' assertion

As the insured of the instant insurance contract died of disease C, the Defendant is obligated to pay KRW 50 million to the Plaintiff, who is a beneficiary of the said insurance contract.

The defendant asserts that the insurance contract of this case is null and void in accordance with Article 7321 (1) of the Commercial Act, so there is no obligation to pay insurance money.

(b) Markets:

Article 731(1) of the Commercial Act provides that "any insurance contract which covers the death of another person as an insured event shall obtain the consent of the other person in writing at the time of the conclusion of the insurance contract." The above provision is a mandatory law and is null and void (see Supreme Court Decision 2014Da204178, Oct. 15, 2015, etc.).

In this case, return to the case, the insurance contract of this case guarantees the death of the main guaranteed part due to the disease of the insured C, which is the insured, and thus constitutes an insurance accident which covers the death of the other person, and as recognized earlier, the plaintiff did not obtain the written consent of the insured C until the conclusion of the above insurance contract. Therefore, the above insurance contract is null and void.

On the other hand, the Plaintiff asserts that, at the time of the conclusion of the instant insurance contract, the Defendant’s insurance solicitor B entered into the said insurance contract with explanation to the effect that there is no problem without the signature of the insured, and thus, the Defendant cannot assert the invalidity of the said insurance contract in accordance with the principle of Park Do. On the other hand, the legislative purport of Article 731(1) of the Commercial Act is to exclude the risk of infringement of public order and good customs by taking the death of another person as the condition of the so-called speculative contract without the consent of the victim, in addition to the risk of gambling insurance and the risk of killing the insured, as well as the risk of killing the death of another person as the risk of causing the death of another person as the condition of the so-called speculative contract without the consent of the victim. Thus, if it is rejected on the ground that the person who entered into the insurance contract with the death of another person as an insured accident without the consent of the insured violates the principle of good faith and good faith and the principle of no speech, barring special circumstances, such assertion cannot be deemed to be contrary to the principle of good faith (see Supreme Court Decision 2067Da.

Therefore, even if all of the circumstances alleged by the Plaintiff are acknowledged, such circumstance alone does not contravene the principle of good faith the Defendant’s assertion on the invalidation of the insurance contract of this case, and there is no evidence to acknowledge that there exists a special circumstance to deem such assertion contrary to the principle of good faith. Therefore, the Plaintiff

In the end, the plaintiff's primary claim is without merit.

3. Judgment on the conjunctive claim

A. Summary of the parties' assertion

The Plaintiff, without adequately explaining the necessity of the written consent of the insured C while actively recommending the conclusion of the instant insurance contract by the Defendant’s insurance solicitor B, concluded the instant insurance contract with the belief that it was used as a substitute for the signature of the insured C used in the previous other insurance contract. Since the insurance contract becomes null and void, the Defendant is liable to compensate for damages equivalent to the insurance amount which the Plaintiff has not received pursuant to Article 102(1) of the Insurance Business Act.

In this regard, the defendant clearly explained the requirements for written consent to the plaintiff and clearly explained that the problem may arise without the plaintiff's written consent, but the defendant concluded the insurance contract of this case at the plaintiff's active demand. Since the defendant fulfilled considerable care in entrusting the recruitment to the plaintiff B, the defendant is not responsible for the invalidity of the above insurance contract. In addition, even if the defendant's liability is recognized, the scope of damages shall be limited to the insurance premium already paid by the plaintiff, and since the plaintiff's negligence that actively participated in the defects of written consent and was grossly notified of the past history, the compensation for damages shall be determined in consideration thereof

(b) Markets:

The fact that the insured column of document B, such as the insurance subscription form of the instant insurance contract, was ordered by the insurance solicitor B to act on behalf of the insurance solicitor. According to the statements in subparagraphs 3 through 7 and witness B’s testimony, the Plaintiff or the Plaintiff’s spouse entered into several insurance contracts through the Defendant B’s insurance solicitor prior to the conclusion of the instant insurance contract, and in particular, on June 2013, 2013.

13. It is recognized that the fact that a policyholder entered into an insurance contract designated by the insured as the Plaintiff and the insured C is recognized by the fact that an insurance solicitor entered into an insurance contract by means of signing on behalf of the insurance solicitor after confirming the signature of the insured in a video currency as requiring the written consent of the insured.

However, in light of the purport of the entire arguments in the statements in Eul's 3, 4, 8, 11, and 12, the plaintiff was aware of the fact that the plaintiff, at the time of entering into the insurance contract of this case, could have any disadvantage at the time of compensation without the consent of the insured, without the consent of the insured. The plaintiff, at the time of entering into the insurance contract of this case after the death of the insured, entered the false statement that the insured, at the time of entering into the insurance contract of this case, went back to the original owner after signing his own signature at the plaintiff's home located in Changjin-gu, Changwon-gu and Changwon-gu, and at the time of entering into the insurance contract of this case, at the time of entering into the insurance contract of this case, the insured C was at the number of houses, and it was not possible to recognize the fact that all the plaintiff and B insurance solicitors had been well aware of the fact that the plaintiff and B were well aware at the time of entering into the insurance contract of this case.

In full view of these facts, it is recognized that the Plaintiff had already known the existence of the consent of the insured at the time of concluding the insurance contract covering the death of another person (in particular, death C) such as the instant insurance contract through the phrases of the insurance invalidity indicated in the instant insurance contract documents, the explanation of the insurance solicitor B and the experience in concluding the previous insurance contract. Therefore, as seen earlier, the Plaintiff appears to have claimed that the Plaintiff concluded the insurance contract with the belief that the above B was used as a substitute for signature in the previous insurance contract of the insured C.

Therefore, it is reasonable to view that the reason why the insurance contract of this case was invalidated due to the defects of the insured's written consent was derived from the failure of efforts to avoid the mandatory law (Article 731 (1) of the Commercial Code) between the plaintiff and the insurance solicitor B rather than the failure to fulfill the duty to explain the requirement of the insurance solicitor's written consent. It is not sufficient to recognize the failure to perform the above active deception or duty to explain as well as the testimony of the witness B, and there is no other evidence to prove otherwise. Therefore, it is difficult to view that the conclusion and invalidation of the insurance contract of this case between the plaintiff and the defendant constituted a case where the insurance solicitor inflicts damage on the policyholder, and therefore, the plaintiff's preliminary claim claiming liability under the Insurance Business Act is

4. Conclusion

Therefore, all of the plaintiff's main and ancillary claims are dismissed as they are without merit. It is so decided as per Disposition.

Judges Lee Jong-soo