[1] The starting point of the statute of limitations for the right to claim the return of premiums paid under invalid insurance contracts (=the time each premium is paid)

[2] In a case where the starting point of the extinctive prescription for right to claim a return of the insurance premium paid pursuant to an invalid insurance contract is at issue, the case reversing the judgment below which held that the extinctive prescription for right to claim a return

[1] The Commercial Act merely provides that the extinctive prescription shall expire if it is not exercised for two years with respect to the right to claim the return of insurance premium (Article 662), and it does not stipulate any time as to the starting point of the extinctive prescription. Thus, extinctive prescription shall run from the time when an objective right arises and the right can be exercised in accordance with the general legal principles of the Civil Act. However, the right to claim the return of insurance premium paid pursuant to an invalid insurance contract in violation of Article 731(1) of the Commercial Act can be exercised when an insurance premium is paid unless there are special circumstances. Thus, the ex

[2] In a case where the starting point of the extinctive prescription for right to claim a return of the insurance premium paid pursuant to an invalid insurance contract is at issue, the case reversing the judgment below which held that the right to claim a return of the insurance premium does not expire on the premise that the extinctive prescription for all the rights

[1] Article 166 of the Civil Code, Articles 662 and 731 (1) of the Commercial Code / [2] Article 166 of the Civil Code, Articles 662 and 731 (1) of the Commercial Code

Plaintiff (Law Firm Cheong Law, Attorney Kim Tae-young, Counsel for the plaintiff-appellant)

Heung Life Insurance Co., Ltd. (Law Firm Sejong, Attorneys Kim Yong-dam et al., Counsel for the plaintiff-appellant)

Cheongju District Court Decision 2009Na6722 Decided October 8, 2010

The part of the judgment of the court below against the defendant shall be reversed, and that part of the case shall be remanded to the Cheongju District Court Panel Division.

We examine the grounds of appeal.

The Commercial Act only provides that the extinctive prescription shall expire if it is not exercised for two years with respect to the right to claim the return of insurance premium (Article 662), and as such, it does not provide that the period of extinctive prescription shall run from the time when an objective right arises and the right can be exercised in accordance with the general legal principles of the Civil Act. However, the right to claim the return of insurance premium paid according to an invalid insurance contract in violation of Article 731(1) of the Commercial Act can be exercised when the insurance premium is paid unless there are special circumstances. Thus, the right to claim the return of the above insurance premium shall run from the time when the insurance premium is paid

According to the reasoning of the judgment of the court below, each insurance contract entered into with the defendant from August 28, 2003 to November 30, 2005, in the annexed Table 1 of the judgment of the court below, which the plaintiff concluded with the defendant as an insurance accident against the death of the insured, is null and void since it did not obtain the written consent of the insured at the time of conclusion of each contract. It can be seen that the total amount of the insurance premium paid by the plaintiff to the defendant on or before April 26, 2007, computed retroactively from the date of the lawsuit of this case among the insurance premium paid by the plaintiff to the defendant under the invalid insurance contract, is KRW 57,421,520 (hereinafter

In light of the above legal principles, the right to claim the return of the insurance premium paid by the Plaintiff according to each of the above insurance contracts that were null and void shall be deemed to have expired after the lapse of the two-year extinctive prescription period

Nevertheless, the court below held that in the event that an insurance contract is null and void, the right to request the return of the insurance premium of this case does not expire on the premise that the extinctive prescription period for the right to request the return of the whole insurance premium paid to the insurer based on the insurance contract will run from the last payment of the insurance premium. Such judgment below erred by misapprehending the legal principles as to the starting point of the extinctive prescription period

Therefore, the part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee In-bok (Presiding Justice)