(영문) 대법원 2014.12.24.선고 2012다35620 판결

The part of the judgment below against Defendant Han Han Life Insurance Co., Ltd. is reversed, and that part of the case is remanded to the Seoul High Court.

The plaintiff's appeal is dismissed.

Of the costs of appeal, the costs of appeal between the Plaintiff and Defendant ELA Insurance Co., Ltd. are assessed against the Plaintiff.

Reasons

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Judgment on the Plaintiff’s grounds of appeal

According to the reasoning of the judgment below, the court below acknowledged the facts based on the employment evidence, and determined that the plaintiff's claim for the above insurance money against the defendant defendant defendant defendant defendant defendant defendant defendant defendant defendant El branch damage insurance Co., Ltd. (hereinafter " defendant El branch damage insurance") on October 29, 2008 was made in accordance with the insurance contract No. 2 attached to the judgment below, and the defendant El branch damage insurance notified the rejection of payment of each of the above insurance money on December 12, 2008, and there was no evidence to support that the plaintiff made a judicial claim under Article 174 of the Civil Act within 6 months from the date of receipt of the notice. Thus, the court below determined that the interruption of prescription became invalid as a peremptory notice.

In light of the records, the above fact-finding and determination by the court below are just, and contrary to what is alleged in the grounds of appeal, there were no errors by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, by misapprehending the legal principles as to the authority of a certified damage adjuster

2. Determination on the grounds of appeal by Defendant Han Korean Life Insurance Co., Ltd. (hereinafter “Defendant Han Korean Life Insurance”)

A. As to the ground of appeal as to whether a disaster occurred

Examining the reasoning of the judgment below in light of the records, it is reasonable to view that the occurrence of the instant disability suffered by the Plaintiff in light of the circumstances acknowledged by the evidence employed by the court below was a direct and important cause for the instant accident. Thus, the judgment of the court below that the instant accident constitutes an accident as a contingent accident under the insurance terms and conditions stipulated by the defendant Han Korean Life Insurance Act is just and acceptable. In so doing, contrary to the allegations in the grounds of appeal, there were no errors in the omission of judgment or lack

1) In a peremptory notice as a reason for interrupting prescription under Article 174 of the Civil Act, where an obligor, who has received a peremptory notice for performance of an obligation, requested postponement of performance to the obligee on the ground that it is necessary to examine the existence of such obligation, etc., the effect of the peremptory notice shall be deemed to continue until the obligee receives a reply. Therefore, the period of six months as prescribed in the same Article shall be interpreted to be calculated from the time when the obligee received a reply from the obligor (see, e.g., Supreme Court Decisions 94Da24336, May 12, 1995; 2010Da9467, May 27, 2010).

2) On December 1, 2008, the lower court accepted the Plaintiff’s claim for the interruption of extinctive prescription as to the Defendant Hansung Life Insurance, on the ground that there was no evidence that the Plaintiff filed a claim for the payment of insurance proceeds under the insurance contracts listed in attached Table 1 of the lower judgment (hereinafter “each insurance proceeds of this case”) with the Defendant Hansung Life Insurance, and that there was no evidence that the Defendant Hansung Life Insurance notified the refusal of payment.

3) However, such determination by the lower court is difficult to accept for the following reasons. In light of the foregoing legal doctrine, unless the obligor, who received a peremptory notice of performance, seeks a grace period for performance against the obligee, the period of six months under Article 174 of the Civil Act shall be calculated from the time when the peremptory notice was given, barring any special circumstance. The burden of proving whether the obligor has requested a grace period against the obligee exists.

However, in light of the reasoning of the lower judgment and the record, there is no circumstance to deem that the Defendant Hansung Life Insurance sought a grace period for the Plaintiff’s respective claims for the payment of insurance proceeds of this case. Thus, it is reasonable to regard that the period of six months should be calculated from the time when the Plaintiff claims the payment of each of the above insurance proceeds in the Defendant Han Hansung Life Insurance.

4) Nevertheless, the lower court determined that the interruption of prescription has the effect of peremptory notice on the ground that there was no evidence that Defendant Han-han Life Insurance notified the Plaintiff of the refusal of payment of each of the above insurance claims without any deliberation and determination as to whether Defendant Han-han Life Insurance sought a grace period for the payment of each of the above insurance claims. The lower court erred by misapprehending the legal doctrine on the interruption of prescription by peremptory notice and failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment.

3. Conclusion

Therefore, the part of the judgment of the court below against Defendant Han-sung Life Insurance is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The appeal by the plaintiff is dismissed, and the part arising between the plaintiff and the defendant Han-Ga Damage Insurance is assessed against the losing party. It is so decided as per Disposition by the assent of