2013Chap 26442. Action relating to insurance

2014Gahap7943 (Counterclaim) Insurance proceeds

△ Fire Marine Insurance Corporation

Gangnam-gu Seoul

Seoul Central District of Service

Representative Director;

○ ○

Chicago-si

September 17, 2015

October 29, 2015

1. The Plaintiff (Counterclaim Defendant) pays to the Defendant (Counterclaim Plaintiff) 50 million won and 20% interest per annum from June 21, 2014 to the day of full payment.

2. Plaintiff (Counterclaim Defendant)’s principal claim and Defendant (Counterclaim Plaintiff)’s remainder of the counterclaim are dismissed, respectively.

3. The costs of lawsuit are assessed against the plaintiff (the counterclaim defendant) by aggregating the principal lawsuit and counterclaim.

4. Paragraph 1 can be provisionally executed.

In the principal lawsuit: It is confirmed that the insurance contract entered into between the Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”) and the Defendant (Counterclaim Plaintiff; hereinafter “Defendant”) is invalid.

Counterclaim: The plaintiff shall pay to the defendant the amount of KRW 50 million and the amount calculated by applying each rate of 5% per annum from February 22, 2013 to the service date of a counterclaim, and 20% per annum from the next day to the day of full payment.

A principal lawsuit and a counterclaim shall be deemed simultaneously.

1. Facts of recognition;

(a) Conclusion of an insurance contract;

On April 12, 2012, the Red○○○ (hereinafter “the Deceased”) concluded an insurance contract in the attached Table (hereinafter “instant insurance contract”) with the Plaintiff, the insurer, on April 12, 2012.

B. Death of the deceased;

In Suwon-si, the Deceased was living in a mixedly in accordance with subparagraph 605 of the Shibudio-dong, Suwon-si (hereinafter referred to as the “Oudio of this case”). On February 21, 2013: (a) around 35: (b) it was found that the deceased was brain-dead and sculpulatory damage caused by the building immediately adjacent to the studio of this case (hereinafter referred to as the “the death of the Deceased”).

[Ground of recognition] The whole purport of the 2, 26, 27, and 28 Certificate (including each number), written in the absence of dispute, written in the evidence Nos. 2, 26, 27, and 28

2. Determination as to the principal claim

A. The plaintiff's assertion

In light of the fact that from December 26, 201 to April 12, 2012, the deceased already subscribed to multiple insurance policies, including the instant insurance contract, and from April 2, 2012, the deceased entered into a total of five further insurance contracts. At the time, the deceased did not have a stable occupation but has paid a total of KRW 173,570 per month insurance premium, and he purchased a multiple insurance policy while paying a total of KRW 173,570 per month insurance premium. In addition, each of the above insurance contracts is most guaranteed insurance, and particularly, the injury death insurance premium exceeds KRW 2.5 billion per insurance company, and the beneficiary at the time of death was distributed the same as a miscarriage for each insurance company, with their parents, spouse, and children, etc., and it appears that the deceased himself died from the window of this case with the intention of unfairly acquiring insurance proceeds through multiple insurance contracts, and thus, the Plaintiff is not obligated to pay the insurance contract in question to the Defendant under Article 10 of the former Civil Act.

B. Relevant legal principles

Where a policyholder concludes an insurance contract for the purpose of unfairly acquiring insurance proceeds through a large number of insurance contracts, requiring the payment of insurance proceeds under such contracts to be made for such purpose would deviate from the social reasonableness by encouraging speculative spirit to gain unjust profits by abusing insurance contracts, as well as hindering the purpose of the insurance system, destroying the contingency of risks, causing the sacrifice of the large number of subscribers, thereby impairing the foundation of the insurance system. Thus, such insurance contract is null and void against the good morals and other social order stipulated in Article 103 of the Civil Act. Whether a policyholder has concluded a large number of insurance contracts with the intent of unfairly obtaining the insurance proceeds should be determined by taking into account all the circumstances such as occupation and property attitude of the policyholder, background leading to the conclusion of the multiple insurance contracts, scale of the insurance contracts, and circumstances before and after the conclusion of the insurance contract (see Supreme Court Decision 2005Da23858, Jul. 28, 2005). 198; and it cannot be readily concluded that there are many motives for entering into the insurance contract and several insurance proceeds under the social order.

C. Determination

In full view of the following circumstances, i.e., the statement on the evidence Nos. 2, 4 through 8, 24 through 26 (numbered number 2) and the overall purport of the pleadings, i.e., (i) the deceased was continuously engaged in income activities even after he was discharged from the military; (ii) the monthly insurance premium of each insurance contract to which the deceased joined was 173,570 won; (iii) the accident of this case occurred after about 10 months from the date of the conclusion of the insurance contract; and (iv) there is no evidence to prove that the deceased intentionally caused the accident of this case to receive insurance money; and (v) it is difficult to deem that the deceased concluded the insurance contract of this case for the purpose of unfairly acquiring the insurance money through multiple insurance contracts, and there is no other evidence to prove that the insurance contract of this case is invalid because it is contrary to good morals and other social order under Article 103 of the Civil Act.

3. Determination on the counterclaim

(a) Obligation to pay insurance proceeds;

According to the above facts, as the deceased, who is the insured of the insurance contract of this case, died in the studio 605 during the insurance period, there was an insured event meeting the requirements for the payment of the injury death insurance amount stipulated in the insurance contract of this case. Thus, the plaintiff, the insurer, according to the insurance contract of this case, is obligated to pay damages for delay calculated by the rate of 20% per annum as stipulated in the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from June 21, 2014 to the day of full payment, which is the day following the date of transmission of the counterclaim.

B. Judgment on the Defendant’s claim for damages for delay

On the other hand, the defendant claimed for the payment of damages for delay from the day following the date of the accident in this case, although the defendant claimed for the payment of insurance proceeds against the plaintiff, the plaintiff did not submit evidence to know whether the plaintiff refused the payment of the examination amount against the defendant, and the evidence submitted by the defendant alone is sufficient to recognize that the plaintiff should have actually paid insurance proceeds to the defendant. In addition, "the case where it is deemed reasonable for the debtor to resist the existence or the scope of the obligation to perform" under Article 3 (2) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings means the case where the debtor's assertion as to the existence or the scope of the obligation to perform is reasonable (see Supreme Court Decision 2004Da39092, Nov. 25, 2005, etc.). The plaintiff's argument as to whether the termination of the insurance contract in this case was null and void, and considering the court's judgment ex officio as to the starting point of the damages for delay, it is not reasonable to apply Article 3 (2).

4. Conclusion

Therefore, the plaintiff's main claim is dismissed as it is without merit, and the defendant's counterclaim is justified within the scope of the above person's counterclaim, and the remainder is dismissed as it is so decided as per Disposition.

Judges Park Jong-chul

Judges Kim Tae-tae