Samsung Fire and Marine Insurance Co., Ltd. (Attorney Oat-jin, Counsel for defendant-appellee)

Defendant (Attorney Kang-gu, Counsel for defendant-appellant)

6 April 2004

Seoul District Court Decision 2003Gahap2721, 203Gahap3267 decided Nov. 6, 2003

1. The plaintiff (Counterclaim defendant)'s appeal is dismissed.

2. The costs of appeal are assessed against the Plaintiff (Counterclaim Defendant).

The principal lawsuit: It is confirmed on January 13, 1999, that there is no obligation based on the insurance contract of the Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”) against the Defendant (Counterclaim Plaintiff; hereinafter “Defendant”).

Counterclaim: The plaintiff shall pay to the defendant 21,300,000 won and 20% interest per annum from the day following the service of the counterclaim of this case to the day of full payment.

Of the judgment of the first instance court, the part against the plaintiff shall be revoked. It is confirmed that there is no obligation based on the insurance contract against the defendant on January 13, 1999. The part corresponding to the part against the plaintiff among the defendant's counterclaim is dismissed.

1. Quotation of the reasons for the judgment of the first instance;

The reasoning for this Court’s explanation concerning this case is as follows: (a) after the item “the termination and restoration of the insurance contract of this case” among the grounds for the judgment of the court of first instance, the Plaintiff’s new assertion in the trial is identical to the description of the grounds for the judgment of the court of first instance, except for adding the following judgments as to the new assertion in the trial of this case; and (b) thus, it is acceptable in accordance with Article 4

2. The addition;

According to Article 14(3) of the Clause of the insurance contract of this case, the insurance contract of this case is null and void in cases where the insured is diagnosed as cancer before the date immediately preceding the date of the commencement of liability for cancer from the date of the insurance contract. Since the diagnosis of the defendant's new cell cancer has become final and conclusive before the date of commencement of liability following the restoration of the insurance contract of this case (i.e., the date 90 days after the date of reinstatement), the insurance contract of this case

However, according to the evidence No. 9 of the insurance contract of this case (Evidence No. 9 of this case), the plaintiff's above assertion is without merit under the premise that Article 14 (3) of the above insurance contract of this case applies to the restoration contract of insurance contract of this case since it is acknowledged that "where the insured is diagnosed as cancer before the date preceding the date of the commencement of liability for cancer from the date of the insurance contract of this case (in this case, the contractor and the insured are aware, or are not aware, of such fact)" is a ground for invalidation of the insurance contract of this case.

3. Conclusion

Therefore, the plaintiff is obligated to pay damages for delay at the rate of 6% per annum under the Commercial Act from June 20, 2003, which is the date following the delivery date of the counterclaim of this case, to November 6, 2003, and 20% per annum under the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings, since the plaintiff is obligated to resist the existence and scope of the obligation, as requested by the defendant, from June 2003, which is the date following the delivery date of the counterclaim of this case, to November 6, 2003, and from the next day to the full payment date, from the day after the above recognition date, the plaintiff's counterclaim of this case is accepted within the above recognition scope, and the defendant's remaining counterclaim of this case and the plaintiff's main claim of this case are dismissed as without merit. Accordingly, the judgment of the court of first instance is just, and therefore

Judges Lee Sang-hoon (Presiding Judge)