[1] The other person's written consent, which is the validity requirement of the life insurance contract which covers the death of the other person as an

[2] Whether the insurance contract becomes effective on the ground that the insured ratified the life insurance contract which covers the death of another person which was concluded without his/her written consent (negative)

[3] The case holding that it does not violate the principle of good faith, etc. to claim the invalidity of the above life insurance contract, even in case where the insurer of the life insurance contract, which concludes another person's death without the insured's written consent, receives insurance premium for several years or pays hospital fees according

[1] The purpose of Article 731(1) of the Commercial Act is to obtain written consent from a third party at the time of concluding an insurance contract covering the death of the third party as an insured event is to eliminate the existence of a dispute by clarifying the timing and method of consent. Thus, the consent of the third party who is the insured shall be obtained separately in writing for each insurance contract, and it is insufficient to obtain comprehensive or implied consent or constructive consent.

[2] According to Article 731(1) of the Commercial Act, the time when the insured shall express his/her consent in writing in another person’s life insurance contract until the conclusion of the insurance contract. This is a mandatory provision and its violated insurance contract is null and void. Thus, if the insured’s written consent is not obtained at the time of the conclusion of the life insurance contract of another person, such insurance contract becomes null and void definitely, and even if the insured has ratified the already invalidated insurance contract, such insurance contract cannot be deemed null

[3] The case holding that it does not violate the principle of good faith, etc. to claim the invalidity of the above life insurance contract even in case where the insurer of the life insurance contract, which concludes another person's death without the insured's written consent, receives the insurance premium for several years or pays hospital allowances in accordance with

[1] Article 731 (1) of the Commercial Act / [2] Article 731 (1) of the Commercial Act / [3] Article 731 (1) of the Commercial Act, Article 2 of the Civil Act

[1] Supreme Court Decision 2003Da24451 decided Jul. 22, 2003 (Gong2003Ha, 1780) / [2] Supreme Court Decision 96Da37084 decided Nov. 22, 1996 (Gong197Sang, 36) Supreme Court Decision 2003Da60259 decided Apr. 27, 2006 (Gong2006Sang, 883)

[Judgment of the court below]

Korea Life Insurance Co., Ltd. (Attorney Jin-si, Counsel for defendant-appellant)

Busan High Court Decision 2004Na2809 delivered on September 9, 2004

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. As to the assertion of misapprehension of legal principles as to the written consent and ratification of the insured's life insurance

The purpose of Article 731(1) of the Commercial Act is to obtain written consent from a third party at the time of concluding an insurance contract which covers the death of a third party as an insured event is to eliminate the existence of dispute by clarifying the timing and method of such consent. Thus, the consent of the third party who is the insured should be obtained separately from each insurance contract, and it is insufficient to obtain comprehensive consent, implied or presumed consent (see Supreme Court Decision 2003Da24451 delivered on July 22, 2003).

Examining the reasoning of the judgment below in light of the above legal principles and records, the court below is just in holding that the deceased non-party who is the insured at the time of entering into the insurance contract of this case, which is a life insurance contract of another person, cannot be deemed to have consented in a document required by the above provision of the law and there is no other evidence to acknowledge this. There is no error of law such as misunderstanding of legal principles as to the

In addition, according to the above provisions of the Commercial Act, the time when the insured shall express his/her consent in writing in another person's life insurance contract until the conclusion of the insurance contract. This is a mandatory provision and thus an insurance contract in violation of this provision is null and void (see, e.g., Supreme Court Decisions 96Da37084, Nov. 22, 1996; 2003Da60259, Apr. 27, 2006). If there is no written consent of the insured at the time of the conclusion of the life insurance contract of another person, such insurance contract becomes null and void definitely, and even if the insured, other than the parties to the insurance contract, has ratified the already invalidated insurance contract, such insurance contract cannot become effective

The decision of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as to ratification of the written consent of the insured.

2. As to the assertion of misapprehension of the legal principles as to the good faith and good faith or the principle of speech

The legislative intent of Article 731(1) of the Commercial Act is to exclude the risk of infringement of public order and good morals by taking the death of another person as the condition of the so-called speculative contract without the consent of the victim in addition to the risk of gambling insurance and the risk of killing the insured. Thus, if a person who entered into an insurance contract which covers the death of another person as an insured accident without the consent of the insured in violation of this provision rejected the claim of invalidation on the ground that it is an exercise of the right against the principle of trust and good faith or the principle of good faith, barring special circumstances, it would result in completely excluding the above legislative intent. Thus, such assertion cannot be deemed as contrary to the principle of good faith or good faith (see, e.g., Supreme Court Decisions 96Da37084, Nov. 22, 1996; 2003Da60259, Apr. 27, 2006).

According to the reasoning of the judgment of the court below, the court below held that even if the defendant has received insurance premiums for several years or had already paid hospitalization allowances according to the medical security agreement of this case, the defendant's refusal to pay insurance money by asserting the invalidity of the insurance contract of this case cannot be deemed to go against the principle of trust and good faith or the principle of no-competing. In light of the above legal principles and the records, the judgment of the court below is just and there is no violation of law as to the principle of trust and good faith or no-competing, as otherwise alleged in the ground of appeal.

3. As to the assertion of violation of the rules of evidence as to whether a traffic accident occurred

According to the reasoning of the judgment below, even if the insurance contract of this case is valid, the court below held that the death of the non-party cannot be deemed to be caused by a traffic disaster stipulated in the insurance contract of this case for the reasons stated in its reasoning. This part of the judgment is an additional and family judgment, so long as the main judgment is deemed to be legitimate as seen earlier, regardless of its legitimacy, and therefore, the argument in the grounds of appeal on this part is

4. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Ahn Dai-hee (Presiding Justice)