(영문) 대전지방법원 2017.11.17. 선고 2017가단215718 판결

The defendant shall pay to the plaintiff 70,950 won with 15% interest per annum from the day following the delivery of a copy of the complaint of this case to the day of complete payment. It is confirmed that the termination of the contract for insurance as stated in the attached list is null and void.

Reasons

1. Basic facts

A. On November 25, 2015, the Plaintiff entered into an insurance contract with the Defendant for children of B, the Plaintiff’s child, as the insured, as the Plaintiff’s child, as specified in the attached list (UB) and entered into the instant insurance contract (hereinafter “instant insurance contract”).

B. Of the matters to be guaranteed by the instant insurance contract, the following expenses for surgery of diseases, expenses for medical treatment of patients suffering from a disease (outboard), and expenses for medical treatment of patients suffering from a disease (outboard), are included.

* Disease surgery expenses (amount of 300,000 won) - Time of surgery (payment of only one surgery in the case of having undergone two or more types of surgery for a disease during the insurance period (one time of surgery, or one surgery in the case of having undergone one or more types of surgery for the same disease) * Expenses for outpatient treatment for a disease, expenses for surgery for outpatient treatment for a disease (250,000 won) - expenses for outpatient treatment for a disease, expenses for surgery for a outpatient treatment for a disease * expenses for medical treatment for a disease - expenses for medical treatment for a disease - expenses for medical treatment for a disease - 50,000 won for a prescription for a disease

C. "Obligation to notify prior to the conclusion of the insurance contract" attached to the contract of this case includes the following information about the insured (person subject to insurance) as necessary for the company to take over the subscription of the insurance contract, so the policyholder and the insured (person subject to insurance) will be able to inform the insurance solicitor, etc. of the following information. If the following information is verbally notified to the insurance company, it will be deemed that the insurance company has not been informed of the obligation before the contract (in the event of failure to notify prior to the contract, i.e., notification 1 to 12). If the following information is not notified of the truth or is falsely notified of the fact, the insurance contract may be refused, and in particular, if the content falls under "material fact", without relation to the will of the policyholder or the insured (person subject to insurance), the contract may be terminated or guarantee may be restricted by the clause, and the plaintiff continued to undergo the following examination or re-examination within 0 years after the examination or re-examination (within 10 years after the examination or re-examination).

D. B, on February 3, 2016, upon receiving the diagnosis of absence from (in the left part) C C C in Seo-gu, Seo-gu, Daejeon and received the diagnosis of absence from (in the face), on February 3, 2016; on February 17, 2016; on March 19, 2016; and on March 3, 2016, the Plaintiff spent the treatment costs of KRW 403,40, and medicine costs of KRW 22,200, respectively; and on April 29, 2016, the Plaintiff claimed insurance proceeds under the insurance contract of this case to the Defendant on April 29, 2016.

E. On May 3, 2016, upon receiving the Plaintiff’s claim for insurance proceeds, the Defendant requested a guardian damage adjusting company (hereinafter “guardian”) with the Plaintiff’s consent to the damage adjusting, and around May 16, 2016, the guardian damage adjusting was submitted to the Plaintiff, respectively.

F. As a result of the examination conducted based on B’s medical records and relevant data, on June 7, 2016, “The Insured is confirmed to have received a diagnosis of Habanium after taking the Habanium, which was sent to the E Hospital prior to the purchase of the instant insurance policy. Also, even if he/she was scheduled to do so, he/she did not implement the brupt (the treatment period between June 24, 2015 and June 25, 2015),” and “The fact that the brupt was conducted in relation to the cruptary decision at the request of the Dburology (the treatment period between June 25, 2015 and July 16, 2015).” The Plaintiff’s violation of the duty to notify was established and submitted to the Defendant a report on the causal relation between the instant claim for the insurance policy and the instant disease.

G. On June 3, 2016, the Defendant maintained the contract by providing the Plaintiff with written consent to the conditional maintenance of the instant insurance contract until June 16, 2016, on the grounds of the Plaintiff’s breach of duty to notify. If the Defendant does not consent within the said period, he/she sent “Guidance on the Results of Contract Examination” to the effect that the instant insurance contract will be terminated as of June 17, 2016, and on June 8, 2016, the said guide reached the Plaintiff.

H. In addition, on June 8, 2017, the Defendant sent the “Guidance on the Results of Contract Examination and Exemption” to the effect that the instant insurance contract is terminated in accordance with the insurance terms and conditions on the grounds of breach of duty to notify to the Plaintiff, and on June 16, 2016, the said instruction reached the Plaintiff.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 6, Eul evidence Nos. 1 through 5 (including paper numbers), the purport of the whole pleadings

2. The plaintiff's assertion

According to Article 651 of the Commercial Act, the termination of the contract due to the breach of duty of disclosure must be confirmed within one month from the date the insurer becomes aware of the violation of the duty of disclosure. However, the Defendant’s notification of the termination of the insurance contract of this case on June 17, 2016, which was one month after the lapse of one month, becomes null and void since the insurer became aware of the past history of B and was able to exercise the right of termination by the time the copy of the medical record of B, the insured, was issued on May 16, 2016. In addition, the Defendant is obliged to pay the Plaintiff the insurance money of this case and its delay damages totaling KRW 70,950 (40,400) (i.e., KRW 403,400), + KRW 22,200, + KRW 300,000, + KRW 435,505,00 from the claim date of insurance money).

3. Determination as to the claim for confirmation of invalidation of termination of contract

In a lawsuit for confirmation, the benefit of confirmation is recognized in cases where there is a dispute between the parties as to the legal relationship which is the subject matter of confirmation, and thereby, it is recognized that the plaintiff's legal status is the most effective and appropriate means to eliminate apprehensions and risks when the plaintiff's legal status is unstable and dangerous, and in spite of the fact that a lawsuit for confirmation can be brought to seek performance is not a final solution of dispute, and therefore there is no benefit of confirmation contrary to the supplement of the lawsuit for confirmation (see, e.g., Supreme Court Decision 2005Da41153, Jul. 10,

On the other hand, under the premise that the insurance contract of this case is effective, the plaintiff seeks confirmation of invalidity of termination of the insurance contract at the same time while claiming the payment of insurance money on the premise that the insurance contract of this case is valid. The validity of termination of the insurance contract is judged in the lawsuit claiming the payment of insurance money, and the plaintiff's filing a lawsuit for confirmation of invalidity of termination of the insurance contract is not a final solution of dispute, and therefore there is no interest

4. Determination as to claims for insurance proceeds

A. Relevant legal principles

According to the Commercial Act, when a policyholder or the insured fails to notify important matters intentionally or by gross negligence at the time of an insurance contract, or makes a false notification, the insurer may terminate the contract within one month from the date of knowing such fact (Article 651) and within three years from the date of conclusion of the contract (Article 651). Even after the occurrence of an insured event, if the insurer terminates the contract pursuant to Article 651 of the Commercial Act even after the occurrence of an insured event, the insurer is not liable to pay the insurance proceeds (main text of Article 655). In light of the fact that the insurer is required to prove the breach of the duty of disclosure first of all, the insurer must prove the fact of the breach of the duty of disclosure in detail. In light of the foregoing, the period of exercise of the right of termination as the starting date of the right of disclosure as mentioned above is the date when the insurer is believed to have a ground to suspect the breach of the duty of disclosure, but it is reasonable to determine as at the time of securing a clear evidence on the violation of the duty of disclosure (see Supreme Court Decision 2002Da75896

Meanwhile, the fact that an insurer asked in writing is presumed to constitute an important matter in an insurance contract (Article 651-2 of the Commercial Act), and the written subscription may also be included in the insured subscription. Thus, if the purport of seeking an answer regarding a certain matter is included in the insurance subscription form, such matter is presumed to be “material fact” as stated in Article 651 of the Commercial Act (see, e.g., Supreme Court Decisions 2003Da18494, Jun. 11, 2004; 2013Da91405, Mar. 13, 2014).

B. Whether the termination of the instant insurance contract is lawful

1) According to the facts established earlier, B was diagnosed as cathogens at E Hospital around June 25, 2015, which was prior to the conclusion of the instant insurance contract, and was diagnosed as hathos, based on the CT image records at E Hospital, and received three-time outpatients treatment from Dbathos department during the period from June 25, 2015 to July 16, 2015, and received hathos hathosium for the left-hand class absence. However, on November 25, 2015, the Plaintiff was obligated to notify before entering into the instant insurance contract, and thus, “whether the Plaintiff received the following medical treatments through a medical examination or examination within the latest five years,” and “within the latest five years, whether the Defendant continued to be aware of the following medical treatments through the medical examination or examination by a doctor,” and “within the latest five years, the Defendant may continue to comply with the instant medical treatment for at least three consecutive days without the Plaintiff’s notice of the examination or examination.”

2) Furthermore, based on the foregoing legal doctrine, whether the Defendant’s exercise of the Defendant’s right to terminate the contract has lapsed the exclusion period under Article 651 of the Commercial Act, and on the basis of the foregoing, the Defendant’s termination of the instant insurance contract as of June 17, 2016 as of June 2016, the Defendant’s termination of the contract as of June 17, 2016, on the following grounds: (a) it is reasonable to conclude that the Defendant was aware of the Plaintiff’s breach of the duty of disclosure in the time when the Defendant submitted a damage evaluation report to the effect that “the insured was treated as the same disease and having a causal relationship with the disease before the purchase of the insurance”; and (b) it cannot be said that the period of exclusion of the Defendant’s exercise of the right to terminate the contract under Article 651 of the Commercial Act was received with the copy of the medical record of the Defendant’s or the Defendant’s damage evaluation entrusted with the damage evaluation business.

C. Sub-committee

Therefore, the plaintiff's claim for insurance money based on the insurance contract of this case is without merit.

5. Conclusion

Therefore, the part of the claim for confirmation of invalidation of termination of contract among the lawsuit in this case is unlawful, and the remaining claims of the plaintiff are dismissed as it is without merit. It is so decided as per Disposition.