[1] The meaning of "the risk of an accident" under Article 652 (1) of the Commercial Code and Article 652 (1) of the General Terms and Conditions of Fire Insurance is significantly changed or increased

[2] Whether the insurer has the duty to specify and explain the terms and conditions of the insurance, even if the terms and conditions of the insurance are generally and commonly used in the transaction, so it is sufficiently anticipated for the policyholder without any separate explanation, or it is merely a mere degree of refusing or delaying what is already stipulated by the laws

[3] Whether an extension or reconstruction project, which brings a significant change to the structure and purpose of an insured building after entering into a fire insurance contract, becomes subject to the duty to notify under Article 652(1) of the Commercial Act and the general terms and conditions of the fire insurance contract (affirmative), and whether the cause for termination is the case of neglect (affirmative)

[4] In a case where the provision of the duty of notification related to the extension, renovation, etc. of the insured building to the policyholder or the insurer of the insured under the general terms and conditions of fire insurance is merely to the extent that the insurer has a separate duty of explanation as to the terms and conditions of the contract (negative)

[5] The case holding that even if there was no notice from the policyholder or the insured, the insurer cannot terminate the insurance contract on the ground that the insurance agent knew or was unaware of the fact that the risk of the occurrence of the insured event was significantly increased due to the extension or rebuilding construction of the insured building and the gross negligence

[1] Under Article 652(1) of the Commercial Act and the general terms and conditions of fire insurance, “the fact that the risk of the occurrence of an accident is significantly changed or increased” refers to the fact that the insurer did not enter into an insurance contract or at least did not take over the insurance premium, if the risk exists at the time of entering into an insurance contract for the change or increase thereof.

[2] Generally, an insurer and a person engaged in the conclusion or solicitation of an 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 an application form, which are specified in the insurance contract, in conclusion of the insurance contract. Thus, if the insurer concludes the insurance contract in violation of such duty to specify and explain the terms and conditions, the insurer cannot assert the contents of the terms and conditions as the content of the insurance contract. However, the insurer's recognition of the duty to specify and explain the terms and conditions lies in the insurer's failure to know that the important matters prescribed in the terms and conditions are the contents of the contract and would avoid unexpected disadvantages to the policyholder. Thus, even if the matters stipulated in the terms and conditions of the insurance contract are defined in the terms and conditions of the insurance contract, it cannot be said that the insurer has the duty to explain and explain such matters even if they are general and common in the transaction, and thus, if they are merely merely about the

[3] In case of fire insurance, insurance and insurance premium rates vary depending on the increase or decrease of the structure and purpose of an insured building, as well as the structure and purpose of the insured building, so if the increased or decreased construction takes place after the conclusion of the fire insurance contract, it shall be subject to the notification obligation under Article 652(1) of the Commercial Act and the general terms and conditions of the fire insurance as it constitutes the fact that the insurer did not enter into the insurance contract, or that at least did not take over the insurance premium, if the policyholder or the insured neglects to do so, the insurer may terminate the insurance contract in accordance with the above provisions.

[4] Where the structure, alteration, extension, etc. of an insured building relating to the alteration or increase of risk after concluding an insurance contract under the general terms and conditions of fire insurance, even if the policyholder or the insured provides for the insurer with the duty of notification without delay, it cannot be deemed that the insurer has a separate duty of explanation as to the duty of notification already set forth in Article 652(1) of the Commercial Act because it constitutes a provision to an indefinite extent in the fire insurance.

[5] The case holding that even if there was no notification from the policyholder or the insured, the insurer may not terminate the insurance contract in accordance with the termination clause of the right to terminate the contract in accordance with the fire insurance general terms and conditions, on the ground that the insurer knew or was unaware of the fact that the risks of the occurrence of the insured event were significantly increased as a result of visiting the policyholder or the insured at the construction site after the extension or remodeling construction of the insured building was completely

[1] Article 652 (1) of the Commercial Act / [2] Article 638-3 (1) of the Commercial Act, Article 3 of the Regulation of Standardized Contracts Act / [3] Articles 652 (1) and 655 of the Commercial Act / [4] Articles 638-3 (1) and 652 (1) of the Commercial Act, Article 3 of the Regulation of Standardized Contracts Act / [5] Articles 652 (1) and 655 of the Commercial Act

[1] Supreme Court Decision 95Da52505 delivered on July 26, 1996 (Gong1996Ha, 2593), Supreme Court Decision 95Da25268 delivered on September 5, 1997 (Gong1997Ha, 2996), Supreme Court Decision 98Da32564 delivered on November 27, 1998 (Gong199Sang, 41) / [2] Supreme Court Decision 98Da32564 delivered on November 27, 1998 (Gong199Sang, 41), Supreme Court Decision 98Da19240 delivered on September 7, 199 (Gong199, 2060)

Shindong Fire Marine Insurance Co., Ltd. (Attorney O Chang-soo, Counsel for defendant-appellant)

Delivery Culture Co., Ltd. (Attorney Lee Jong-woo et al., Counsel for the defendant-appellant)

Seoul High Court Decision 97Na53924, 98Na11545 delivered on November 3, 1998

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the violation of the duty to notify

The court below found the following facts by taking full account of the evidence presented at the court below.

(1) The Defendant (Counterclaim Plaintiff; hereinafter “Defendant”) was a company engaged in leisure-related business, etc., and newly built a building of the Olympic Culture Center (a structure: the three-story exhibition facilities of natural slate roof in steel structure, the three-story exhibition facilities of 1837.54m2, 1837.23m2, 2151.34m2/use: one story viewing assembly facilities (a performance hall), souvenirs stores, resting stores, film-making rooms, and power-driven rooms, the second floor exhibition room, space science model exhibition room, satellite display room, satellite display room, news-satellite display room, entertainment room, entertainment room, etc., and the third floor exhibition room (a space experience room, space science experience room, alone, and management office building: hereinafter “instant building”). The Defendant had the right to use the building.

B. The Defendant Company continued to enter into a fire insurance contract with the Plaintiff Company since 1992. On February 21, 1995, the subject matter of the insurance contract between the Plaintiff Company and the Plaintiff Company entered into a fire insurance contract. On February 21, 1995, the insurance contract was concluded with the Plaintiff Company on the second floor (1,169 square meters, 650 square meters, 2,800,000 won, 10 square meters, 200,000 won, 20,000 won, 10,000 won, 1,000,000, 1,000, 1,000, 55,000 won, 1,000,000 won, from February 26, 1995 to December 13, 198, and the insurance premium was renewed every year.

around February 21, 1996, the defendant company concluded the second year fire insurance contract based on the fire insurance contract with the plaintiff company through the non-party resources managing the new agency of the plaintiff company, and paid 3,511,731 won of the premium. The plaintiff company issued the insurance policy and the terms and conditions to the defendant company each year whenever the new insurance contract is concluded.

Around January 13, 1996, the Defendant Company promoted the extension project of the building of this case from around 1995, and entered into a contract with the United Kingdom Co., Ltd. on the following terms: (a) around August 5, 1996, the Defendant Company entered into an agreement with the Nonparty Special Self-Governing Party, who leased the second floor convention center of the building of this case, to delegate the internal equipment and the interior equipment and the interior art works on the leased parts to the said Decree.

(1) Construction name: Olympic Culture Center for the 3-story floor covering construction works (extension of approximately 1,460 square meters).

(2) Use: Extension, alteration of purpose of use, and restoration to viewing and assembly neighborhood living facilities of the third floor which consists of viewing and exhibition rooms.

(3) Details of construction works: Five open sections on the upper floor of the third floor, two openings on the upper floor of the second floor, and two coverings on the upper floor of the second floor toilets, and on the side passage by outer lines (all floor parts except the upper floor part shall be treated as iron plates identical to the existing floor, while the upper part shall be treated as trins).

However, the defendant company did not commence the construction due to the delay of permission for extension, etc., and obtained permission from the head of Songpa-gu on August 27, 1996 to change and extend the use of the above contents. The defendant company set the construction period between the joint building company and the joint building company from September 3, 1996 to October 20, 196 and made the company extend or rebuild the construction.

(v) around 09:42 December 12, 1996, the 2nd floor and the 3rd floor of the instant building were burned into the shot and upper floor, and the shot and upper floor of the instant building was destroyed into the shot and upper floor, and the shot and upper floor was destroyed by a shot and upper floor, which was displayed in the shot and upper floor of the second floor.

⑹ 이 사건 화재보험계약의 내용이 된 보통약관(이하 '이 사건 보통약관'이라 한다) 제9조(계약 후 알릴 의무) 제1항 제3호, 제2항에 의하면 보험계약자나 피보험자는 보험계약을 맺은 후 보험의 목적 또는 보험의 목적을 수용하는 건물의 구조를 변경·개축·증축하거나 계속하여 15일 이상 수선하는 경우에는 지체 없이 서면으로 보험자에게 알리고 보험증권에 확인을 받아야 하고, 같은 약관 제11조(계약의 해지) 제2항 제2호에 의하면 뚜렷한 위험의 변경 또는 증가와 관련된 위 제9조에 정한 계약 후 알릴 의무를 이행하지 아니하였을 때는 보험자가 계약을 해지할 수 있으며, 다만 보험자가 그 사실을 안 때로부터 1개월이 지났거나 보험자의 중대한 과실로 알지 못한 때에는 계약을 해지할 수 없다고 규정하고 있다.

⑺ 그런데 피고 회사는 위와 같이 이 사건 건물의 증·개축공사를 실시하면서 원고 회사에게 위 공사에 착수하였음을 서면으로 통지하지 아니하였다.

⑻ 원고 회사는 이 사건 화재가 발생한 후인 1997. 1. 10.경 피고 회사에게 위와 같이 피고 회사가 이 사건 건물의 증·개축공사에 착수하였음에도 이를 통지하지 않았다는 이유로 위 약관 규정에 따라 이 사건 화재보험계약을 해지한다는 뜻을 내용증명우편으로 통지하여 그 시경 피고 회사에게 도달되었다.

The lower court determined, based on the above facts, as follows.

Article 652(1) of the Commercial Act provides that when the policyholder or the insured becomes aware of the fact that the risk of an accident has been significantly changed or increased during the insurance period, the insurer shall, without delay, notify the insurer of such fact, and if the policyholder or the insured neglects to do so, the insurer may terminate the insurance contract within one month from the date on which it becomes aware of such fact, and Article 11 of the General Terms and Conditions of this case also provides the same purport. "The fact that the risk of an accident, which is the subject of the duty to notify in this case, exists at the time of conclusion of the insurance contract," means the fact that the insurer did not enter into the insurance contract or that at least it is recognized that the insurer would have not taken over the insurance premium (see, e.g., Supreme Court Decisions 95Da25268, Sept. 5, 199; 98Da32564, Nov. 27, 1998).

However, it is reasonable to view that the increased and decreased construction work of the same scale and degree as mentioned above exists in the process, and there is a high possibility of fire occurrence. Therefore, if such construction work exists at the time of entering into an insurance contract, it constitutes the fact that the insurer did not enter into an insurance contract or at least did not take over the insurance premium, and it is reasonable to view that the defendant company knew of the change or increase in such risk in light of the size and degree of the above construction work. Thus, the insurance contract of this case is subject to the duty to notify under Article 652 of the Commercial Act or Article 11 of the General Terms and Conditions of this case. Thus, the insurance contract of this case is lawfully terminated due to the notice of termination of the contract of this case by the plaintiff company, unless there are special circumstances such as notification under the Commercial Act or written notification under the General Terms and Conditions of this case by the defendant company to the plaintiff company.

In light of the records, the above fact-finding and judgment of the court below are just and there is no error of law such as misunderstanding of legal principles as to the requirements for the duty to notify or misunderstanding of facts against the rules of evidence

The ground of appeal on this part is without merit.

2. As to the violation of the duty to specify and explain the terms and conditions

In general, the insurer and the persons engaged in the conclusion or solicitation of insurance contracts are obliged to specify and explain the important contents of the insurance contract, such as the content of the insurance contract, the insurance premium rate system, changes in the entries in the written subscription form, etc., which are contained in the insurance contract, in conclusion of the insurance contract. Thus, if the insurer concludes the insurance contract in violation of such duty to specify and explain the terms and conditions, it cannot be asserted as the content of the insurance contract. However, the insurer is not aware of the existence of such duty to explain and explain the terms and conditions. However, even if the terms and conditions are stipulated in the insurance contract, it is reasonable to avoid disadvantage that the policyholder would suffer unexpected disadvantages because they are the contents of the contract and are common in the transaction, and thus, if it is a matter that the policyholder could have sufficiently predicted without any separate explanation, or if it is merely a degree that the contents already stipulated in the Acts and subordinate statutes are returned or added, it cannot be said that the insurer has the duty to explain and explain such matters until it comes to such matters (see, e.g., Supreme Court Decision 98Da997.

However, in the case of fire insurance, the insurance and insurance premium rate are different depending on the expansion and alteration of the structure and purpose of the insured building as well as the alteration thereof. Thus, in the case of the expansion and alteration of the building which brings a significant change to its structure and purpose after the conclusion of the fire insurance contract, if such matters exist at the time of the conclusion of the contract, the insurer should be subject to the duty to notify under Article 652 of the Commercial Act because it falls under the fact that the insurer did not conclude the insurance contract or that at least the premium would not have taken over the insurance. Therefore, if the policyholder or the insured neglects this, the insurer may terminate the insurance contract under the Commercial Act.

Therefore, as seen earlier, even if the policyholder or the insured stipulates the duty to inform the Plaintiff company without delay in the case of the alteration, alteration, extension, etc. of the structure of the insured building related to the significant change or increase of risks in the instant ordinary terms and conditions, it cannot be deemed that the duty to notify already set forth in Article 652(1) of the Commercial Act constitutes an indefinite provision in detail in the fire insurance, and thus, the Plaintiff company, the insurer, has a separate duty to explain.

The judgment of the court below to the same purport is just and there is no error in the misapprehension of legal principles as to the duty of specification and explanation.

The ground of appeal on this part is without merit.

3. Concerning the performance of the duty to notify or the termination of the right

A. According to the reasoning of the judgment below, from December 15, 1995 to the third floor of the building of this case, the defendant company started to extend or rebuild the building by installing a non-structure structure, which is a temporary stairs for the removal work and construction work, from the third floor of the building of this case. The non-party Kim present and Jeon Soo-ear, an employee of this company, notified the non-party resources, the insurance agent of the plaintiff company, of the above construction work before and after the conclusion of the insurance contract of this case, and around September 26, 1996, when the former resources visited the defendant company at the time of entering into the insurance contract of this case and around September 26, 1996, the court below rejected the defendant company's argument that the termination notice of the contract of this case, which was made on January 10, 1997, was unlawful, or that the defendant company violated the principle of good faith, and thus, rejected the plaintiff company's right to terminate the contract of this case for the following reasons.

In other words, there is no evidence to acknowledge that the Defendant Company had known the fact that it had commenced the instant extension or reconstruction work to the Gu Resources before entering into the instant insurance contract or around September 26, 1996, and that the Plaintiff Company had already known or could have known the fact that it had already started the instant extension or reconstruction work through the Gu Resources, the Defendant Company visited the Defendant’s office located within the instant building around September 26, 1996, including before and after the conclusion of the instant insurance contract, around September 1996. The Defendant Company did not know the fact that it had known the fact that it had started the instant extension or reconstruction work from December 1995 to September 26, 1996 that it had not been aware of the fact that it had not been negligent in obtaining permission from the competent authorities on August 27, 1996, and that it had not been aware of the fact that the Plaintiff Company had not been aware of the fact that it had started the construction work and had not been negligent in calculating the insurance premium of this case.

B. (i) Performance of the duty to notify;

In light of the records, the fact finding and judgment of the court below on this part is just and there is no error of law such as misconception of facts against the rules of evidence.

The ground of appeal on this part is without merit.

Doz. Termination of the Right

In accordance with Article 11(2)2 of the General Terms and Conditions, the insurer may not terminate the insurance contract after one month has elapsed from the time it knew, or was unable to know, by gross negligence, that the risk of the occurrence of the accident has increased remarkably.

However, according to the facts established by the court below, the defendant company entered into an insurance contract with the 195 company prior to December 195 to remove some facilities of the building of this case, purchased building materials, and started construction in full after obtaining construction permission around August 27, 1996. The above old resources visited the office of the defendant company located in the building of this case before and after the conclusion of the fire insurance contract of this case, and visited the defendant company's office as the insurance agent around September 26, 1996 when the above construction was in progress, and according to the records, the defendant company opened the 19th floor of this case's 9th floor as the open building of the 195 company's 9th floor for viewing and rebuilding of the 19th floor of the building of this case as the 9th office building's open building's 9th office building's 9th office building construction work's 9th office building construction work's 19th office building construction work's 19th office.

In light of the above facts, the expansion and reconstruction construction works of this case constitutes "the fact that the risk of an accident significantly increases" as stipulated in Article 652 (1) of the Commercial Act or Article 11 of the General Terms and Conditions of this case, and the construction works of this case constituted "the fact that the risk of an accident significantly increases" in September 1996, which began and came into force in full as above, and the former resources, which have been operating the plaintiff's insurance agency for a long time, visited the office of the defendant company located at the construction site as the insurance agent on or around the 26th of the same month, were sufficiently aware of the fact that the risk of an accident was significantly increased, or that there was gross negligence in failure to know it.

Nevertheless, the court below rejected all of the defendant's defenses and counterclaims on the ground that the increased or reconstructed construction works in this case around September 26, 1996, in its external form, could not be recognized that there was a significant increase or change in risk affecting the calculation of the insurance premium of this case, and as such, construction works have been advanced, etc., to the extent that they could not affect the calculation of the insurance premium of this case. The court below's rejection of all of the defendant's defenses and counterclaims by misapprehending the legal principles as to Article 11 (2) 2 of the General Terms and Conditions

The defendant's ground of appeal pointing this out is with merit.

4. Therefore, the judgment of the court below is reversed and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Yoon Jae-sik (Presiding Justice)