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(영문) 서울고등법원 2017.05.16 2016나209681
손해배상(기) 등
Text

1. All appeals by the Defendants are dismissed.

2. The costs of appeal are assessed against the Defendants.

Purport of claim and appeal

1.

Reasons

1. The reasoning of the court's explanation concerning this case is as stated in the judgment of the court of first instance, in addition to the following additional parts, and therefore, it is acceptable to accept this as it is in accordance with the main sentence of Article 420 of the Civil Procedure Act.

2.No. 17 of the judgment of the first instance, in addition, the following shall be added:

C. Although the defendants' defenses are invalid in violation of good morals and social order under Article 103 of the Civil Code, the plaintiff must return to the defendants the total insurance premium paid by the defendants under each of the insurance contracts of this case, and therefore, the defendants set up against the plaintiffs' claim amount.

In full view of the purport of the arguments as to the defendants' defense Gap evidence Nos. 2-1 and 2, the defendants paid a total of KRW 22,012,830 to the plaintiff according to the insurance contract stated in the attached Table for 57 months from September 3, 2007 to May 2012. The defendants concluded each of the insurance contracts of this case for the purpose of unfairly acquiring the insurance proceeds under the circumstance of the insurance accident. Thus, each of the contracts of this case was concluded for the purpose of unfairly acquiring the insurance proceeds, and thus, it is invalid because each of the contracts of this case is in violation of good morals and other social order.

On the other hand, according to Article 746 of the Civil Act, in a case where the benefits constitute illegal consideration and there is an illegal cause to the benefits provider, the benefits provider is in principle unable to seek the return of the illegal consideration, regardless of whether there is an illegal cause to the beneficiary, or whether the degree of the illegal cause to the beneficiary or the illegality of the benefits provider is larger than that of the benefits provider (see Supreme Court Decision 95Da49530, Oct. 24, 1997). As long as each of the instant insurance contracts are null and void in violation of good morals and other social order, the insurance premium that the Defendants offered constitutes illegal consideration.

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