(영문) 서울중앙지방법원 2016.3.11.선고 2013가합88244 판결

3. Of the litigation costs, the part arising between the Plaintiff and DefendantCC Fire Insurance Co., Ltd. shall be borne by the Plaintiff, and the part arising between the Plaintiff and Defendant LB shall be borne by Defendant B.

4. Paragraph 1 can be provisionally executed.

Purport of claim

The Defendants jointly and severally serve the Plaintiff KRW 294, 209, 111, and a duplicate of the complaint of this case.

5% per annum and 20% per annum from the next day to the date of full payment.

The payment of each proportion of money shall be made.

Reasons

1. Determination on the Plaintiff’s claim against DefendantCC Fire Insurance Co., Ltd.

A. The plaintiff's assertion

The main text of Article 102(1) of the Insurance Business Act provides that “An insurance company shall be liable for damages to its employees, insurance solicitors, or insurance agencies (including insurance solicitors belonging to insurance agencies) if such damages are inflicted on its policyholders.” However, DefendantCC Fire Insurance Co., Ltd. (hereinafter referred to as “DefendantCC”), the insurance solicitors of the Plaintiff and Pyeongtaek-si known to the Plaintiff, should renew the insurance contract of DefendantCC, which the Plaintiff joined,” and jointly and severally liable for damages from the Plaintiff to the Plaintiff pursuant to the main sentence of Article 102(1) of the Insurance Business Act, which is the total amount of damages to the Plaintiff by using the insurance solicitors of DefendantCC Co., Ltd. (hereinafter referred to as “DefendantCC”).

B. Determination

1) Article 102 of the Insurance Business Act, which provides for liability for damages to Defendant 1’s insurance solicitors or insurance agencies (including insurance solicitors belonging to such insurance agencies) shall take precedence over Article 756 of the Civil Act, which is a general provision on employer’s liability for damages. Thus, even if the insurance solicitor’s solicitation is not itself, the provision “” shall include the act of objectively related to or similar to the solicitation of the insurance solicitor’s own account at the time of external observation, and shall not be acknowledged as falling under the scope of the solicitation. (See Supreme Court Decision 2004Da45356, Nov. 23, 2006, 2001; 10. 206. 1. 1. 2. 06. 7. 1. 2. 206. 2. 1. 206, each of the instant contracts concluded by Defendant 10, 204Da45356, Oct. 18, 2010.

10. Around 10. Around 201, DefendantCC was not in the position of insurance solicitor, and ② Defendant LB is 2011.

12. In light of the fact that: (a) the Plaintiff was commissioned as the insurance solicitor of DefendantCC on December 21, 200; (b) it was affiliated with non-exclusive corporate agency (GA); (c) it is reasonable to view that the Plaintiff’s transfer of the instant money to Defendant LB is not related to the solicitation of DefendantCC’s insurance; and (c) it is reasonable to deem that the Plaintiff and Defendant LB are personal monetary transactions between the Plaintiff and the Plaintiff as well as Defendant LB, in view of the fact that: (a) the termination refund for the insurance contract was received from DefendantCC to renew DefendantCC’s insurance; and (b) the transfer of the instant money to Defendant LB account is contrary to the common sense of trade.

3) Accordingly, the Plaintiff’s claim against DefendantCC is without merit.

2. Determination as to the Plaintiff’s claim against Defendant LB

The plaintiff asserts that the defendant ChoiB suffered damages equivalent to the same amount from the plaintiff's arbitrary use of the money received from the plaintiff. The above defendant is deemed to have led to confession pursuant to Article 150 of the Civil Procedure Act.

According to the above facts of recognition, Defendant LB is obligated to pay the Plaintiff damages for delay calculated at the rate of 294, 209, 111 won and damages for delay calculated at the rate of 5% per annum prescribed by the Civil Act from December 18, 2013 to March 11, 2016, which is the date of this judgment, and 15% per annum prescribed by the Act on Special Cases Concerning Expedition, etc. of Legal Proceedings from the following day to the date of full payment (the Plaintiff claimed damages for delay calculated at the rate of 20% per annum from the day of this judgment to the day of full payment, but the statutory interest rate of Article 3 (1) of the Act on Special Cases Concerning Expedition, etc. of Legal Proceedings was amended by Presidential Decree No. 2653, Sept. 25, 2015; and thus, the part seeking damages for delay exceeds the above rate of damages for delay.)

3. Conclusion

The plaintiff's claim against the defendantCC is dismissed, and the plaintiff's claim against the defendant ChoiB shall be accepted within the scope of the above recognition, and the remainder shall be dismissed.