[1] Where the policyholder promises in writing to apply for change of the driver in the event that the driver of the vehicle is changed at the time of the conclusion of the previous insurance contract, whether the insurance contract can be deemed as being asked in writing as to the driver if the insurance subscription form in which the principal driver is in the column is presented by the insurance solicitor when concluding the insurance contract again (affirmative)

[2] The case reversing the judgment of the court below which concluded that the insurer did not fulfill its duty to notify and explain the insurance terms to the principal driver under the insurance contract

[1] In general, upon entering into an insurance contract, the policyholder cannot be deemed to have received written questions from the insurer regarding each of the items stated in the subscription form, and cannot be deemed to have received written questions from the insurer. However, upon entering into an insurance contract whose immediately preceding period has expired with the insurer, the policyholder promised in writing the insurer to apply for change of the main driver if the main driver of the vehicle is changed between the insurer and the insurer. As such, in entering into the insurance contract with the same content, if the insurer has received written subscription from the insurer, it can be deemed to have received written questions from the insurer as to the main driver.

[2] The case reversing the judgment of the court below which concluded that the insurer did not fulfill its duty to notify and explain the terms of the insurance contract with respect to the main driver, etc. on the ground of violation of the rules of evidence and incomplete hearing

[1] Articles 651 and 651-2 of the Commercial Act / [2] Articles 638-3 and 651 of the Commercial Act, Article 3 of the Regulation of Standardized Contracts Act, Articles 187 and 393 of the Civil Procedure Act

[1] [2] Supreme Court Decision 95Da53546 delivered on March 8, 1996 (Gong1996Sang, 1220) Supreme Court Decision 96Da4893 delivered on April 12, 1996 (Gong1996Sang, 1534 delivered on June 25, 1996) 96Da12009 delivered on June 25, 1996 (Gong196Ha, 2306)

Han Fire Marine Insurance Co., Ltd. (Attorneys Han Han-soo et al., Counsel for the plaintiff-appellant)

Shin Young-tae (Attorney Cho Young-tae, Counsel for the defendant-appellant)

Chuncheon District Court Decision 96Na2570 delivered on October 25, 1996

The judgment of the court below is reversed, and the case is remanded to Chuncheon District Court Panel Division.

We examine the grounds of appeal.

1. According to the reasoning of the judgment below, since Article 51 (1) of the General Terms and Conditions for Business Automobile Insurance which is the contents of the insurance contract of this case based on macro evidence provides that "when entering into the insurance contract of this case, if the policyholder, the insured, or their agents do not know material facts from among the matters asked in writing intentionally or by gross negligence, the company may cancel this insurance contract by notifying the policyholder's address in writing." On June 30, 1995, at the time of entering into the insurance contract of this case as to truck No. 8Na7095 which is owned by the defendant, the defendant mainly driven the insurance contract of this case separately from the above vehicle, and the non-party's name, who has worked as a driver or a technician concurrently, was not aware of such material facts, or notified differently from the fact, the plaintiff did not know about the contents of the insurance contract of this case's insurance contract of this case's insurance contract of this case's violation or duty to inform the insurer of such material facts, and thus, the plaintiff or its agent's duty to inform in writing."

2. However, it is difficult to accept the above recognition and determination of the lower court for the following reasons.

According to Gap evidence 7 (Written Confirmation, 60 pages), Lee Jae-sik's testimony as witness of the first instance trial (119 pages), etc., the non-party Lee Jong-sik, the plaintiff's director of the three-party business office, concluded a comprehensive automobile insurance contract with the defendant as to the truck No. 8Na7095 on his behalf on May 10, 1993, and the contract was concluded again on May 10, 1994 with the defendant on behalf of the plaintiff, and the contract was concluded again on May 10, 1994. At the time, the above long-term type was instructed from the plaintiff's head office to clarify who is the main driver at the time of concluding the insurance contract, so the defendant stated "I will directly drive the vehicle without the driver's license, and will make an application for change of the driver's license at the time of employment of the article after the conclusion of the insurance contract (Evidence No. 7) with the defendant on May 6, 1995.

In general, when entering into the insurance contract, it cannot be deemed that a policyholder received an insurance subscription form from the insurer and received written questions as to each of the items listed in the said subscription form. However, the defendant agreed between the plaintiff and the plaintiff in writing to apply for change of the driver in the event that the driver of the above vehicle is changed to the plaintiff as to the above vehicle immediately before the insurance contract expires. Thus, in the contract of this case, if the plaintiff received an insurance subscription form stated in the column for the driver from the plaintiff as to the above, it can be deemed that the insurer was asked in writing from the plaintiff, who is the insurer. Thus, the court below erred in the misapprehension of the terms and conditions of the contract since it is not clear whether the above insurance subscription form was presented to the defendant at the time of the above insurance contract or whether it was presented to the defendant as a witness, or there is no evidence to prove that the plaintiff had presented the above insurance subscription form in writing to the defendant at the time of the above insurance contract, and there is no evidence to support that the court below failed to examine this point in writing and did not affect the judgment.

In addition, according to the records, when the comprehensive automobile insurance contract between the plaintiff and the defendant was terminated on May 10, 1993, the plaintiff and the defendant again entered into the contract on May 10, 1994, the court below issued a policy to clarify who is the principal driver at the time of the conclusion of the insurance contract by the plaintiff's head office, and issued a written confirmation that "I will directly drive the above vehicle without the driver, and will make an application for change of the driver at the time of employment" from the defendant. The court below did not have any error in the law regarding the duty to inform the defendant that the plaintiff violated the duty to inform and explain the terms of the insurance contract on May 10, 1994, since the concept of the principal driver's duty of disclosure and the rate of the driver's duty to inform the defendant as well as the duty to inform the above change of the terms of the insurance contract on May 10, 194.

3. Therefore, without examining the remaining grounds of appeal, we reverse the judgment below and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Yong-hun (Presiding Justice)