2013Na437 Insurance proceeds

□□ 정보통신 주식회사 ( 변경 전 상호 : ▣▣정보통신 주식회사 )

Mag-gu, Young-si

sentence of the representative director

Attorney Lee Sang-hoon

Fire Insurance Corporation

Seoul

Representative Director;

Attorney Cho Chang-chul, Counsel for the defendant-appellant

Suwon District Court Decision 2012Da14681 Decided December 11, 2012

May 2, 2013

June 13, 2013

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the defendant.

1. Purport of claim

The defendant shall pay to the plaintiff 3, 879, 070 won with 5% per annum from December 1, 2011 to the delivery date of a copy of the complaint of this case, and 20% per annum from the next day to the day of complete payment.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Basic facts

A. On July 2010, the Plaintiff entered into a group insurance contract (hereinafter “instant insurance contract”) with the Defendant, an insurance company, with all 1,023 executives and employees of the Plaintiff as the insured on the basis of the attached list as the insured. The instant insurance contract includes the content that the Plaintiff shall pay KRW 100 million in the event that the insured died due to injury.

B. On July 5, 2011, 201: Around 30, 201, ○○, one of the insured workers of the instant insurance contract, was an employee of the Plaintiff Company, felled at a height of 6 meters from the string of the electric display work, which is the Plaintiff Company’s business, and suffered brain damage, and died at around 18:56 of the same month (hereinafter “the instant insurance accident”).

C. The heir of leap○○ transferred the right to claim insurance under the instant insurance contract to the Plaintiff, and notified the Defendant of the transfer and the notification to the Defendant.

D. The Plaintiff claimed KRW 100 million against the Defendant regarding the instant insured incident, but was paid only KRW 66,120,930 on October 25, 201 by the Defendant, and was not paid the remainder of KRW 33,879,070 until now.

2. Determination as to the cause of action

According to the above facts, barring any special circumstance, the Defendant is obligated to pay to the Plaintiff the remainder of KRW 33,879,070 after deducting KRW 66,120,90 of the insurance money already paid from KRW 100 million based on the insurance contract of this case, and damages for delay calculated at each rate of 20% per annum as stipulated in the Civil Act, from December 1, 201 to March 7, 2012, which is the day following the day when the Plaintiff claims the above insurance money to the Defendant, as sought by the Plaintiff, as the result of the occurrence of the obligation to pay the insurance money.

3. Judgment on the defendant's assertion

A. Determination on the assertion of violation of the good faith principle

The Defendant asserts that in the case of group insurance contracts, even if the policyholder violated the duty of disclosure, it is difficult for the insurance company to easily terminate the contract for the management of business performance and the conclusion of re-contract, despite having violated the original duty of disclosure, the Defendant maintained the insurance contract in this case and endeavored to perform business operations in favor of the Plaintiff as much as possible, and in the process, the period for exercising the Defendant’s right to termination on the ground of the Plaintiff’s high-priced breach of duty of disclosure is limited, and the Defendant’s period for exercising the right to termination on July 5, 201, when the Plaintiff’s maturity of the insurance contract in this case arrives, the Plaintiff’s claim for the insurance amount in this case cannot be permitted in violation of the good faith principle.

In order to deny the exercise of rights on the ground that the exercise of rights violates the principle of trust and good faith under the Civil Act, it should be given to the other party with good faith, or the other party with good faith objectively from an objective point of view. The exercise of rights against the other party’s good faith should reach an extent that is not acceptable in light of the concept of justice (see Supreme Court Decision 2007Da17482, Mar. 10, 201).

In light of the above legal principles, the defendant asserted that the claim of the insurance money of this case is contrary to the good faith principle on the premise that the plaintiff's duty of disclosure is violated, but it is difficult to deem the plaintiff to be in violation of the duty of disclosure. Thus, the plaintiff's claim of the insurance money of this case cannot be viewed as the exercise of right against the good faith principle, and there is no other evidence to acknowledge it. Accordingly, the defendant's argument is without merit.

B. Determination as to set-off defense against increased insurance premium claims on the ground of the Plaintiff’s breach of duty of disclosure

(1) At the time of the conclusion of the instant insurance contract, the Defendant was entitled to claim an increase of KRW 33,879,070, which is the difference in the premiums of KRW 1,023, which is the difference in the premiums of KRW 1,023, which is the difference in the premiums of KRW 33,879,070, which is the difference in the premiums of KRW 1,023, among the above 1,023 officers and employees of the Plaintiff’s company at the time of the conclusion of the instant insurance contract, and concluded the instant insurance contract by notifying all the above 1,023 employees to work for Class 1,03 employees and employees of Grade 3.

(2) Article 651 of the Commercial Act provides that, if a policyholder or the insured fails to notify material facts intentionally or by gross negligence at the time of the insurance contract, the insurer may terminate the contract within one month from the date of becoming aware of such fact, and only within three years from the date of the conclusion of the contract. In this case, the term "material matters" means matters that are the standard for the insurer to determine whether to enter into the insurance contract or the contents of the insurance contract, such as the addition of premium or special exemption clause, by measuring the total rate of the occurrence of the insured events and the occurrence of the liability arising therefrom, and if the insurer objectively knows such fact, it refers to matters that are thought that the insurer would not enter into the contract, regardless of whether to enter into the contract, or at least the same condition, if it comes to know of such fact, and what amount should be determined objectively in light of the technology of the insurance (see, e.g., Supreme Court Decision 2004Da3615, Jul. 14, 2005).

(3) First, we examine whether it is an important matter subject to duty of disclosure.

In full view of the purport of Gap 1, 2, and 8, Eul evidence 2, Eul evidence 4, Eul evidence 5, Eul evidence 8, Eul evidence 8, Eul evidence 8, witness witness ○○○, witness ○○○ and Park ○○'s testimony, part of the testimony and arguments of the court of first instance, 600, among the executives and employees of the plaintiff company 1, 023, are engaged in on-site work at Grade 3, and 3, it is reasonable to deem that the above 1,023 employees as insured at the time of the conclusion of the insurance contract falls under Grade 1, 3, and that the above 1,023 employees as insured at the time of the conclusion of the insurance contract constituted 0,000,000 won of the above insurance contract at least 0,000,000 won of the above 3,00,000,000 won of the above insurance premium rate of Grade 1, 3,007.

(4) Furthermore, we examine whether the Plaintiff violated the duty of disclosure intentionally or by gross negligence.

In order for an insurer to terminate an insurance contract for breach of duty of disclosure under Article 651 of the Commercial Act, it should be proved that the policyholder or the insured was aware of the existence of the duty of disclosure and of the existence of such a matter, and that the insurer failed to comply with the duty of disclosure due to intentional or gross negligence. Here, the term "material excess" was known, but it was unaware of the fact that the insurer had to notify, but was not aware of the fact that it was an important fact that there was a mistake in the judgment of the importance of the fact or that it was an important fact that the fact should be notified due to significant negligence (see Supreme Court Decision 2009Da10349, 103356, Apr. 14, 2011, etc.).

In light of the fact that the plaintiff intentionally or by gross negligence did not inform the plaintiff 1 of its insurance premiums, 4, 5, 8, 10 witness of the first instance court, 00, and 2's testimony were difficult to believe in light of the following circumstances. Rather, the plaintiff was an organization accident insurance that was recognized as being 6, 7, 9, and 17, and 207 as a whole, it was difficult for the defendant to know that the plaintiff did not have any duty to inform the plaintiff 1 of the insurance premiums at the time of signing the insurance contracts with 0,000, and that the defendant did not have any duty to inform the 10,000,000 won, 7,000 won, 7,000 won, and 10,000 won, 7,000 won, 7,000 won, and 1,000 won, 20,000 won, 7,000 won, 209.

(5) Therefore, the defendant's above assertion, which is premised on the plaintiff's breach of duty of disclosure, is without merit.

C. Determination on set-off defenses against a claim for return of unjust enrichment

(1) The defendant asserts that even though the plaintiff paid only the premium to the defendant to which the above 1,023 persons were applied as Class 1 to injured water supply, the defendant has a duty to obtain profits equivalent to 33,879,070 won, the difference of the above premium, which is the difference of the above premium, without any legal ground by obtaining a guarantee under the insurance contract of this case, and to return the difference to the defendant as unjust enrichment by causing damage equivalent to the above premium amount. Thus, the defendant asserts that the plaintiff's claim for return of unjust enrichment against the plaintiff's claim for return of unjust enrichment against the difference of the insurance premium of this case.

(2) The unjust enrichment system imposes an obligation of return on a benefiting person on the basis of the ideology of equity and justice in cases where the benefiting person’s property gains lack legal causes (see Supreme Court Decision 2006Da53733, 53740, Mar. 13, 2008, etc.).

However, as seen earlier, it is difficult to view that the Plaintiff, either intentionally or by gross negligence, was engaged in the field work falling under Class 3 of 1,023, and even if 60 persons among the above 1,023 persons engaged in the field work falling under Grade 3 of 1,00 water supply, the Defendant cannot terminate the insurance contract of this case on the ground of the Plaintiff’s breach of duty to notify. Moreover, even if the Plaintiff was so notified, the current legal system does not recognize the insurer’s right to change the insurance contract if the Plaintiff did not notify the important matters at the time of the conclusion of the insurance contract, or the terms and conditions of the insurance contract of this case did not recognize the insurer’s right to change the insurance contract, and thus, the Defendant cannot claim the Plaintiff to increase the insurance fee by modifying the insurance premium of this case.

Therefore, in this case where there is no evidence to prove that there is any defect in the invalidity of the insurance contract of this case, and there is no legal ground, the plaintiff cannot be deemed to have taken an interest equivalent to the difference of the insurance premium without any legal ground, and therefore, the defendant's above-off defense is without merit.

4. Conclusion

Therefore, the judgment of the court of first instance is just in conclusion, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.

The number of judges in the presiding judge

Judges Choi ○-○

Judges Kim Young-min