[1] In the case where there is a provision that an insurance contract should invalidate a cancer diagnosis in which the insured is confirmed prior to the date of the insurance contract in the insurance contract that constitutes an insurance accident under the insurance contract that directly causes the death that became final and conclusive as a result of the determination of the cancer diagnosis and the death that became final and conclusive as such,

[2] Whether the terms and conditions provisions of the above / [1] are invalid in violation of the Act on the Regulation of Terms and Conditions (negative)

[1] Article 644 of the Commercial Act, which provides for the effect of the objective confirmation of an insurance accident, provides that an insurance contract for an insurance accident for which an insurance accident has already occurred, shall not be allowed in the event of an insurance accident at the time of the insurance contract, based on the inherent nature of the insurance contract premised on the contingency of the occurrence of an accident. In the insurance contract where the insured becomes final and conclusive prior to the date of the insurance contract in which the insured's death as a direct cause exists, the insurance contract shall be null and void in the event of a cancer diagnosis which is one of the insurance accidents before the date of the insurance contract. Thus, in light of the purport of Article 644 of the Commercial Act or the premise that the insurance contract is premised on the good faith of the insured, the insurance contract shall be deemed null and void in the event of the occurrence of the insurance accident, and the purport of the whole insurance contract shall not be deemed null and void in the case of an insurance accident related only to cancer.

[2] The terms and conditions of the contract cannot be deemed null and void as a clause which violates the principle of trust and good faith as provided by Article 6 (1) and (2) 1 of the Regulation of Standardized Contracts Act, or loses fairness due to unfair disadvantage to customers. It shall not be deemed null and void as a clause which limits the scope of the enterpriser's damages or transfers the risks to be borne by the enterpriser to customers without any reasonable ground as provided by Article 7 subparagraph 2 of the Regulation of Standardized Contracts Act.

[1] Articles 644 and 651 of the Commercial Act / [2] Article 644 of the Commercial Act, Article 6(1) and (2)1 of the Regulation of Standardized Contracts Act, and Article 7 subparag. 2 of the Regulation of Standardized Contracts Act

Plaintiff 1 and one other (Attorney Kim Shin-ho et al., Counsel for the plaintiff-appellant)

International Life Insurance Co., Ltd. (Seo Law Firm, Attorneys Park Jong-soo et al., Counsel for the plaintiff-appellant)

Seoul District Court Decision 97Na17017 delivered on September 26, 1997

The judgment below is reversed. The case is remanded to the Seoul District Court Panel Division.

The grounds of appeal are examined.

1. According to the reasoning of the judgment below, on April 29, 195, the court below acknowledged that the non-party as the insured of himself with the defendant who is an insurance company on April 29, 1995, entered into an insurance policy without dividends-type security insurance contract (hereinafter referred to as the "insurance contract of this case") which guarantees the death, etc. caused directly by ordinary disasters or traffic disasters, and entered into an insurance contract with cancer diagnosis, and paid premiums, and died after assaulting another person on November 12 of the same year. Since the deceased non-party died as one of the guaranteed insurance contracts of this case, the court below determined that the defendant is liable to pay insurance proceeds to the plaintiffs who are the beneficiary of the insurance contract of this case. According to the evidence adopted in its judgment, the insurance contract of this case becomes null and void if the insured was diagnosed before the date of the insurance contract of this case, and the insurance contract of this case becomes void only when the non-party, who is the beneficiary of the insurance contract of this case, entered into the insurance contract of this case, and it can not be justified.

2. However, Article 644 of the Commercial Act, which provides for the effect of the objective confirmation of an insurance accident, provides that an insurance contract shall not be invalidated in the event of an insurance accident which has already occurred at the time of the insurance contract, in light of the nature of the insurance contract premised on the contingency of the occurrence of the accident. The above standardized contract of this case provides that the insurance contract of this case shall be null and void in the event of the confirmation of cancer diagnosis which is one of the insurance accident before the conclusion of the insurance contract of this case, and shall be in accordance with the purport of Article 644 of the Commercial Act. Therefore, in light of the purport of Article 644 of the Commercial Act or the fact that the insurance contract of this case is based on the insured's good faith, the whole insurance contract of this case shall be null and void in the case of the reasons stipulated in the above provision. It cannot be deemed null and void only if the insurance accident occurred in connection with cancer, and it shall not be deemed null and void in the purport of Article 6 (1) and (2) 1 of the Regulation of Standardized Contracts Act.

Therefore, as long as the deceased non-party has already undergone a final diagnosis before entering into the insurance contract of this case, the insurance contract of this case shall be deemed null and void in accordance with the terms and conditions of the contract of this case, notwithstanding the court below, since the contract of this case can be applied only to the case where the insurance accident of this case occurred in relation to cancer, the defendant can be exempted from paying the insurance money. Thus, the contract of this case cannot be deemed null and void in accordance with the terms and conditions of the contract of this case. Thus, the court below erred in the misapprehension of legal principles as to the interpretation of the terms and conditions of the contract of

3. Therefore, without examining the remaining grounds of appeal, the judgment of the court below shall be reversed, and the case shall be remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Jong-chul (Presiding Justice)