[1] Where an insurer concludes an insurance contract in violation of the duty to specify and explain the terms and conditions of the insurance contract, whether it can be asserted as a content of the insurance contract (negative), and where the insurer is exempted from the duty to explain and explain

[2] In a case where a standardized contract clause stipulating that "the insured is disqualified when the insured does not correspond to the spouse of the principal insured during the insurance period," in an insurance that can only be covered by the principal insured's family register or resident registration, is at issue, the case holding that the insurer has no duty to specify and explain since it is a general and common part in the transaction, and thus it could have sufficiently anticipated the policyholder or the insured even without a separate explanation from the insurer

[1] Article 638-3 (1) of the Commercial Act, Article 3 of the Regulation of Standardized Contracts Act / [2] Article 638-3 (1) of the Commercial Act, Article 3 of the Regulation of Standardized Contracts Act

[1] Supreme Court Decision 2003Da15556 Decided May 30, 2003 (Gong2003Ha, 1441) Supreme Court Decision 2004Da28245 Decided November 25, 2004 (Gong2005Sang, 5) Supreme Court Decision 2006Da87453 Decided April 27, 2007 (Gong2007Sang, 780)

Plaintiff

Samsung Life Insurance Co., Ltd. (Law Firm Grandmark, Attorneys Hong-ho et al., Counsel for defendant-appellant)

Seoul Central District Court Decision 2010Na23974 Decided October 26, 2010

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

The grounds of appeal are examined.

Generally, at the time of concluding an insurance contract, the insurer and the persons engaged in the conclusion or solicitation of the insurance contract are obligated to specify and explain the important contents of the insurance contract, such as the content of the insurance contract, the insurance premium rate system, and changes in the entries in the written subscription for insurance, etc., which are contained in the terms and conditions of the insurance contract, so if the insurer concludes an insurance contract in violation of the duty to specify and explain such terms and conditions, it cannot be asserted as the content of the terms and conditions as the content of the insurance contract. However, the recognition of the duty to explain and explain the terms and conditions is based on the intention to avoid the disadvantage that the policyholder would suffer unexpected disadvantages because the important matters of the terms and conditions are the contents of the contract as the contents of the contract while the policyholder is unaware. Thus, even if the terms and conditions are prescribed in the terms and conditions, it cannot be said that the insurer has the duty to explain and explain such matters even if they are included in the terms and conditions of the general and common transaction, or merely in the extent that the policyholder would have been able to expect or neglect them (see Supreme Court Decision 20

In light of the following circumstances acknowledged by the reasoning of the judgment below and the record, that is, the insurance of this case is "in the name of the principal insured as a type three times of non-payment work type", which is "in the family register or resident registration of the principal insured, only the spouse of the principal insured can subscribe as an insured, and insurance premium is discounted than the principal insured and his spouse can subscribe as an individual. If the principal insured and his spouse are not the spouse of the principal insured during the cover period, the principal insured lose the status of the principal insured is stipulated in the provisions of this case concerning the qualification of the principal insured. Unlike the time of the conclusion of the insurance contract of this case, the principal insured and the principal insured are resolved by divorce, and it may cause moral hazard to maintain the status of the principal insured as the principal insured even if the principal insured were divorced by divorce. Thus, the insurance contract of this case is general and common in transactions, and thus, it is not erroneous in the misapprehension of legal principles as to the insurer's duty to explain and explain such matters to the defendant.

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 Kim Nung-hwan (Presiding Justice)