[1] The case holding that in a case where Party A, a policyholder, changed the beneficiary to Party A without the consent of Party B, and Party B asserted that the above change becomes null and void, the change of beneficiary without the consent of Party B is null and void

[2] In a case where Party A, a policyholder, filed a claim against Party B, the insurer, claiming that the termination of the insurance contract is null and void, without obtaining the consent of Party B, the case holding that Party C is liable to pay the insurance proceeds on the premise that the insurance contract is valid

[1] The case holding that in case of life insurance or accident insurance, where the policyholder Gap, without Eul's consent, claims that the above change of the beneficiary Eul becomes null and void, the insurance policyholder's designation or change of the beneficiary after the conclusion of the contract, if it is an insurance contract which covers the death of another person, the insured's written consent should be obtained, and the above change of the beneficiary without Eul's written consent is null and void.

[2] In a case where Party A, a policyholder, sought payment of insurance money under the provisions of the insurance contract against Party B, the insurer, asserting that the termination of the insurance contract becomes null and void without the consent of Party B, the case holding that Party B, on the premise that the insurance contract is valid, is obligated to pay insurance money to Party B, on the ground that the policyholder and the beneficiary constitute an insurance for another person; in such a case, the policyholder would not obtain the consent of the other party or terminate the insurance contract without the possession of the insurance policy; and in light of all the circumstances, Party A’s expression of intent of termination is null and void because Party B’s consent at the time of requesting the termination of the insurance contract or because Party

[1] Articles 731(1), 733(1), 734(1) and (2), and 739 of the Commercial Act / [2] Article 649(1) and (2) of the Commercial Act

Plaintiff (Law Firm Won, Attorneys Choi Jong-soo et al., Counsel for the plaintiff-appellant)

Defendant 1 and one other (Law Firm Maduk et al., Counsel for the defendant-appellant)

July 10, 2014

1. Defendant Samsung Fire and Marine Insurance Co., Ltd. shall pay to the Plaintiff 90,196,768 won with 5% interest per annum from February 12, 2014 to September 4, 2014; and 20% interest per annum from the next day to the day of complete payment.

2. The plaintiff's remaining claims against the defendant Samsung Fire Marine Insurance Co., Ltd. and the defendant 1 are dismissed, respectively.

3. Of the costs of lawsuit, the part arising between the Plaintiff and Defendant 1 is borne by the Plaintiff, the part arising between the Plaintiff and Defendant Samsung Fire and Marine Insurance Co., Ltd., with 20% of the Plaintiff, and 80%

4. Paragraph 1 can be provisionally executed.

Defendant 1’s claim against Defendant 1: Defendant 1 performed the procedure for change of the name of each beneficiary of the death insurance as the Plaintiff and the beneficiary of the death insurance as the statutory heir with respect to the insurance contract indicated in the attached list.

The Defendant Samsung Fire and Marine Insurance Co., Ltd. (hereinafter “Defendant Co., Ltd.”): The Defendant Co., Ltd. shall pay to the Plaintiff 108,849,95 won with 5% interest per annum from November 9, 201 to the date of the instant judgment, and 20% interest per annum from the following to the date of full payment.

1. Basic facts

A. On June 2, 2009, Defendant 1 concluded an insurance contract on June 4, 2009, with written consent from the Plaintiff during the marriage period, with the insured and beneficiary as the Plaintiff as the Plaintiff (hereinafter “instant insurance contract”), and set up an account under the name of the Plaintiff as an automatic insurance premium payment account.

B. Thereafter, around 20:00 on November 9, 201, the Plaintiff was diagnosed with cerebrovascular (hereinafter “instant accident”). On July 11, 2012, the Plaintiff received the first degree of cerebrovascular disability from the North-gu Office of Ulsan Metropolitan City, Ulsan Metropolitan City. Accordingly, the Defendant Company paid to the Plaintiff the insurance proceeds amounting to KRW 54,702,658, including hospital medical expenses for the treatment of hospitalization until July 16, 2012, totaling KRW 20,000,000 for cerebrscular diagnosis expenses, 180,000 per hospitalization day, and maximum hospitalization expenses for disease.

C. However, on December 7, 201, after the occurrence of the instant accident, Defendant 1’s application, the beneficiary of the instant insurance contract changed from the Plaintiff to Defendant 1, and on the same day, the automatic payment account was changed from the Plaintiff’s account to the Plaintiff’s name. On March 30, 2012, Defendant 1’s account was changed from the Plaintiff’s name to the Plaintiff’s name, and on August 22, 2012, the change was again made from the Plaintiff’s account to Defendant 1’s name.

D. In addition, on August 27, 2012, Defendant 1 terminated the instant insurance contract by telephone to the call center of the Defendant Company, and received KRW 1,820,450 from the Defendant Company.

E. Meanwhile, on January 29, 2013, a divorce conciliation was established between the Plaintiff and Defendant 1.

[Reasons for Recognition] In the absence of dispute, Gap evidence 1 through 4, evidence 8, evidence 11, and evidence 13

2. Determination as to the claim against Defendant 1

A. The plaintiff's assertion

According to Article 5 of the terms and conditions of the instant insurance contract, the Plaintiff stipulates that “When the contractor intends to change the beneficiary, the insured’s consent must be obtained before the cause for the payment of the insurance proceeds occurs,” and Nonparty 1 changed the beneficiary of the instant insurance contract to Defendant 1 by forging the relevant documents without the Plaintiff’s consent on December 7, 2011. Such change of the beneficiary is null and void as it violates the above terms and conditions. Accordingly, Defendant 1 asserts that the beneficiary of the death insurance in relation to the instant insurance contract is obligated to perform the procedure for change of the beneficiary’s name as the Plaintiff, and each beneficiary of the beneficiary of

B. Effect of change of the name of the beneficiary by Defendant 1

In the case of life insurance, it is recognized that a policyholder has the right to designate or change a beneficiary (Article 733(1) of the Commercial Act). However, when a policyholder designates or changes a beneficiary after concluding a contract, if it is an insurance contract which covers another person’s death as an insured accident, the insured’s written consent is obtained (Articles 734(2) and (1), and 731(1) of the Commercial Act). This is also applicable mutatis mutandis to an accident insurance (Article 739 of the Commercial Act). However, the grounds to regard Article 731(1) of the Commercial Act as a mandatory provision (see Supreme Court Decision 2003Da24451, Jul. 22, 2003) are all compulsory provisions that regard the above provision as a mandatory provision (see Supreme Court Decision 2003Da2451, Jul. 22, 2003). In such case, the insurance beneficiary’s written consent is invalid without such consent.

In the instant case, the Plaintiff was originally designated as the beneficiary of the instant insurance contract, and the fact that Defendant 1 changed his application for change on December 7, 201, as seen earlier. However, according to the data submitted by Defendant 1, Defendant 1 was signed by the Plaintiff (the data submitted by the Defendant Company, the first face of the application for change appears to be the beneficiary of the insurance contract, the second face of the insurance premium payment account, and the second face of the Plaintiff’s signature). According to the appraiser Nonparty 1’s appraisal result, it cannot be acknowledged that the Plaintiff’s written consent was obtained with the Plaintiff’s signature because it was different from the Plaintiff’s written consent (the testimony by Nonparty 2 cannot be seen as the foregoing recognition alone). Thus, the change of the beneficiary of the instant insurance contract is null and void because it did not meet the requirements of the Plaintiff’s consent.

C. Determination as to the plaintiff's claim

First of all, in the case of an insurance contract which covers the death of another person as an insured accident, the consent of the other person is obtained when the beneficiary is designated or changed, but it is not recognized that the plaintiff as the beneficiary and the insured have the right to demand the change of the name of the beneficiary to the defendant 1 who is the policyholder.

In addition, as long as the change of beneficiary's name is null and void as seen above, the Plaintiff is still in the status of the beneficiary of the insurance contract of this case. If so, the Plaintiff, who is already in the status of the beneficiary, has the right to demand against Defendant 1 to change the beneficiary to himself.

Therefore, the plaintiff's claim for this part is without merit.

3. Determination as to the claim against the defendant company

A. The parties' assertion

Although the Plaintiff is an insurance policy for another person, it is impossible to terminate the instant insurance contract without the Plaintiff’s consent or without carrying the insurance policy, Defendant 1 terminated the instant insurance contract without obtaining any consent from the Plaintiff without holding the insurance policy. This is null and void as it violates Articles 649 and 663 of the Commercial Act. Thus, the instant insurance contract is valid, and thus, the Defendant Company is liable to pay the Plaintiff the insurance proceeds arising from the instant accident as stipulated in the instant insurance contract.

On the other hand, the defendant asserts that the insurance contract of this case was terminated by the defendant 1, the policyholder, and that even though the defendant 1 did not present the insurance policy to the defendant company at the time of the termination of the insurance contract, the defendant company terminated the insurance contract of this case after hearing the answer that the defendant company had an insurance policy from the defendant 1. Thus, the insurance contract of this case was terminated according to lawful procedures, and there was no obligation to pay the insurance money that occurred after the termination of

B. Effect of termination of the instant insurance contract

The policyholder may terminate the insurance contract at any time before the occurrence of the insured event, and even if the insured event occurred, even if the insurer pays the insured amount, the insurance contract of this case may be terminated (Article 649(1) and (2) of the Commercial Act). Although Defendant 1 terminated the insurance contract of this case on August 27, 2012 after November 9, 201, the date when the insured event occurred, the date when the insured event occurred. However, according to the evidence No. 3 and evidence No. 13, in the case of the insurance contract of this case, the insurance contract of this case is deemed to have not been reduced even after the insured amount was paid after the occurrence of the insured event caused by the disease under the terms and conditions. Thus, Defendant 1, the policyholder, can terminate the insurance contract of this case.

However, as seen earlier, the Plaintiff still is in the status of the beneficiary of the insurance contract of this case. The insurance contract of this case is insurance for another person by the policyholder and the beneficiary of the insurance contract of this case. In such case, the policyholder may not terminate the insurance contract unless the policyholder obtains the consent of the other person or does not possess the insurance policy (Article 649(1) proviso of the Commercial Act and Article 649(1) proviso of the Commercial Act). However, the above restriction is stipulated in Article 649(1) proviso of the Commercial Act, but it is exceptionally stipulated in Article 649(2) of the Commercial Act concerning the insurance contract that can be terminated even after the occurrence of the insurance accident, and it seems not to be the purport of actively stipulating the termination according to the requirements different from Article 649(1) of the Commercial Act. Such provision aims to protect the other person who is the beneficiary of the insurance contract for the other person, and the necessity of such protection can not be changed after the occurrence of the insurance accident.

In the instant case, as seen earlier, Defendant 1 terminated the instant insurance contract by telephone to the Defendant Company on August 27, 2012. However, according to the overall purport of the recording files and pleadings submitted by the Defendant Company, it can be acknowledged that Defendant 1 did not obtain the Plaintiff’s consent at the time of termination of the instant insurance contract. Therefore, whether Defendant 1 had the insurance policy at the time of termination or not is in possession of the insurance policy. If the Defendant 1 called the Defendant Company to cancel the instant insurance contract, the employees of the Defendant Company requested the Defendant Company to send by facsimile copies of identification cards and copies of passbooks entitled to refund for termination, and the submission of the insurance policy was only made orally on whether Defendant 1 had the insurance policy at the time of termination, and did not verify whether the insurance policy was in possession of the insurance policy at the time of termination or otherwise on the ground that Defendant 1 did not have any dispute over the Plaintiff’s family members at the time of termination, which appears to have been in possession of the insurance policy at the time of termination, as well as on the Plaintiff’s family members at the time of the instant insurance policy.

Although the defendant company asserts that the effect of violation of the above provisions of the Commercial Code cannot be considered as absolute invalidation, considering the fact that Article 663 of the Commercial Code provides that the provision cannot be changed disadvantageous to the beneficiary, this provision is added to special requirements for termination of the insurance contract in order to protect the beneficiary, Article 649 of the Commercial Code is a mandatory provision.

Therefore, the defendant 1's expression of intent to terminate the insurance contract of this case is null and void. Thus, the defendant company's defense is without merit.

Therefore, the Defendant Company should pay the insurance money premised on the validity of the instant insurance contract.

C. Determination as to the plaintiff's insurance claim

(1) Calculation of the insured amount

(a) Funds for rehabilitation of illness and disability: 90,196,768 won;

Under the instant insurance contract, the Defendant Company’s payment of KRW 90,196,768 to the beneficiary of the instant insurance contract as a lump-sum amount of the rehabilitation fund for illness and injury as a result of the instant insurance contract does not conflict between the parties. Moreover, changing the beneficiary of the instant insurance contract to Defendant 1 is null and void, and the Plaintiff still is in the status of the beneficiary. Therefore, the Defendant Company should pay

(b) Hospitalization medical expenses, hospital allowances, and long-term hospitalization expenses;

In addition, the Plaintiff seeks reimbursement of KRW 12,951,227 per hospitalization, KRW 5,400 per hospitalization day (30,000 per hospitalization x 180 days), and KRW 300,00 for long-term hospitalization expenses.

However, in the insurance contract of this case, the compensation limit for medical expenses for the same disease shall be 365 days from the date the diagnosis becomes final and conclusive (D), and the hospitalization commenced after the lapse of 180 days from the date of the final hospitalization for which the medical expenses for the disease were paid shall be deemed to be a new outbreak (Article 3(3) of the relevant terms and conditions), and [Renewal] the daily amount of hospitalization for the same disease (at least one day) shall be limited to 180 days per one time of hospitalization, and the number of days of such hospitalization shall be deemed to be continued to be more than 180 days after the date of the final hospitalization for the purpose of directly treating the same disease; however, the number of days of hospitalization shall be deemed to be a new hospitalization if the person is hospitalized after the lapse of 180 days from the date of the final hospitalization for which the daily amount of hospitalization for the disease was paid (Article 1(6) and (7) of the relevant terms and conditions), / [Renewal] the long-term hospitalization expenses for the disease (at least 310 days).

However, the date of the instant accident was November 9, 201. The Plaintiff had already received 180 days’ worth of hospitalization medical expenses, long-term hospitalization expenses for hospital diseases, and daily hospitalization allowances for hospital diseases from July 16, 2012, as seen earlier. According to the evidence evidence Nos. 14 through 24, the Plaintiff’s payment of the Plaintiff’s period of hospitalized treatment, etc. in the Dong University of University, Ulsan International Medical Center from September 11, 2012 to December 14, 2012, and between Gangnamdong Hospital from December 14, 2012 to November 18, 2013, and from the Dongnam National Medical Hospital from the Dong University, Busan National Medical Hospital from November 18, 2013 to the date of the instant accident, and from January 17, 2014 to the date of the instant case.

However, the above period is 365 days after the date of the accident in this case. The plaintiff's hospitalized treatment is deemed to have occurred based on the same disease in this case, and since the expenses for hospitalized treatment, long-term hospitalization expenses for diseases, and daily allowances for hospitalization for the plaintiff in this case are expenses incurred again before 180 days have elapsed from the date of the final discharge of the previous contract, it cannot be claimed separately from the insurance money already received by the plaintiff. Thus, the plaintiff's claim for this part is without merit.

(2) Payment obligations of the Defendant Company

According to the evidence No. 3 of the instant insurance contract, the Defendant Company may recognize that the terms and conditions of the instant insurance contract provide that the Defendant Company shall pay insurance proceeds with respect to physical damage within three business days from the date of receipt of the report on the occurrence of damage and the claim for insurance proceeds (Article 33(1)). It is evident that the Plaintiff’s claim for reimbursement and modification of the claim made on February 3, 2014, stating the details of the Plaintiff’s claim for insurance proceeds, such as lump-sum payment and hospital medical expenses for recovery of disability caused by disease and injury, were served on the Defendant Company on February 6, 2014. Therefore, the Defendant Company is obligated to pay the Plaintiff the insurance proceeds amounting to KRW 90,196,768, and the amount at least three business days after the date of the Plaintiff’s claim for insurance proceeds to the Defendant Company, as the Plaintiff seeks from February 12, 2014 to September 4, 2014, calculated annually by 5% as prescribed by the Civil Act, and the following special cases concerning delay damages.

[In relation to delayed damage, the defendant company paid the future claim in advance, so there is no room for delay damages incurred due to the lapse of the payment deadline. However, according to the evidence No. 13, it can be acknowledged that the special terms and conditions provide that if the beneficiary requests a lump-sum payment with respect to the corresponding amount, the lump-sum payment at an estimated interest rate shall be paid. If the plaintiff claims a lump-sum payment, it shall be deemed that the claim has already occurred. Thus, the delay damages shall be caused after the lapse of three business days from the date of the claim in accordance with the terms and conditions of the insurance contract of this case. Therefore, the defendant company's argument in this part is without merit.

In addition, the defendant asserts that the defendant company delayed the payment of insurance proceeds because it does not specify who is the beneficiary due to the dispute between the plaintiff and the defendant 1, and that there is no damages for delay during that period. However, even if there is a dispute over the beneficiary, the defendant company could perform the obligation by deposit, etc., even though it did not perform the obligation. Therefore, the argument that the defendant company is not liable for the delayed payment of insurance proceeds is without merit.)

4. Conclusion

Therefore, the plaintiff's claim against the defendant company is accepted within the scope of the above recognition, and the remaining claims are dismissed as it is without merit. The plaintiff's claim against the defendant 1 is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment] List: omitted

Judges Lee Jong-soo (Presiding Judge)