In the event that a life insurance contract is concluded in violation of the meaning of "accident" among the requirements of the insurance accident in the life insurance contract and the duty of disclosure, the requirements for recognizing intentional deception for the fraud of insurance

Article 347 of the Criminal Act, Articles 651 and 730 of the Commercial Act

Supreme Court Decision 2008Da78491, 78507 Decided August 19, 2010 (Gong2010Ha, 1773)

Defendant

Defendant

Law Firm Dakaoon, Attorney Song Tae-op

Seoul Central District Court Decision 2010No593 Decided May 27, 2010

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

The grounds of appeal are examined.

1. In the crime of fraud, deception is based on the premise of intention, and it includes dolusent intention. However, the willful negligence as a subjective element of the constituent elements of the crime refers to the case where the possibility of occurrence of the crime is expressed to be uncertain and it is acceptable. Therefore, in order to have existence of dolusent intention, there is not only awareness of the possibility of occurrence of the crime, but also an internal intent to allow the risk of occurrence of the crime. Whether the actor permitted the possibility of occurrence of the crime should be determined based on specific circumstances, such as the form of the act, the situation of the act, etc. revealed outside, and the possibility of occurrence of the crime should be determined by considering how the general public can assess the possibility of occurrence of the crime (see Supreme Court Decision 2007Do1214, Feb. 26, 2009).

Meanwhile, a life insurance contract refers to an agreement under which the insured is liable to pay the insurance proceeds with respect to a "accident involving human life". Here, "accident" refers to an accident caused by an unforeseeable cause and not intentional but unexpected cause, and an accident resulting in an unforeseeable result in ordinary process (see Supreme Court Decision 2008Da78491, 78507, Aug. 19, 2010). Therefore, even if a policyholder concludes a life insurance contract with an insurer in violation of the duty of disclosure under the Commercial Act, the insurance proceeds are not paid only by the conclusion of the insurance contract, but only by the occurrence of a contingency. Thus, it cannot be concluded that there was an intentional deception of the policyholder to obtain insurance proceeds in violation of the duty of disclosure under the Commercial Act solely on the ground that the policyholder entered into the insurance contract in violation of the duty of disclosure under the Commercial Act, and further, it should be acknowledged that the insurance contract was concluded with the knowledge that the occurrence of an accident occurred or without permission, but only with intent to arbitrarily manipulate the insurance accident, thereby impairing the inherent nature of the insurance accident.

2. The lower court: (a) concluded an insurance contract with Nonindicted Co. 2 (hereinafter “Insurance Company”) of the name of “○○○ Social Insurance Contract” with the Defendant’s husband, who had been employed as an insurance solicitor from around August 2005, and was inspected and treated as Non-Indicted 1’s blood cancer type from around 1998 to August 29, 203; (b) determined that the Defendant’s act of purchasing insurance proceeds from Non-Indicted 5’s husband’s husband constituted “non-Indicted 1’s insurance contracts with the same type of insurance company subject to examination and treatment within 0 years from around 1998 as non-Indicted 1’s blood cancer type; (c) concluded the instant insurance contract with Non-Indicted 2 (hereinafter “this case’s insurance contract”) on the condition that the Defendant would have received insurance proceeds from Non-Indicted 6’s purchase of insurance proceeds from Non-Indicted 4 (“non-Indicted 9’s insurance contracts with the same type of insurance company’s insurance contract without questioning, treatment, and answer to questions regarding the instant disease type of insurance contract.”

3. However, examining the reasoning of the judgment below in light of the aforementioned legal principles, even if the defendant violated the duty of disclosure under the Commercial Act by failing to notify the deceased non-indicted 1's previous rhetoral cancer treatment power, etc. in response to intentionally or by gross negligence in entering into the insurance contract of this case, insofar as the insurance accident of this case is not of a nature that can determine whether or not the insurance accident of this case occurred by the defendant's intention or any act, unless the defendant was aware of the insurance accident of this case at the time of entering into the insurance contract, or the defendant was aware of it in a circumstance that could anticipate the possibility of the occurrence of the insurance accident of this case, it cannot be deemed that the act of entering into the insurance contract of this case constitutes intentional deception for the purpose of acquiring insurance money. Nevertheless, the court below erred by misapprehending the legal principles on deception required in fraud for the purpose of acquiring insurance money, and failing to exhaust all necessary deliberations, thereby affecting the conclusion of the judgment.

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Shin (Presiding Justice)