(영문) 서울중앙지방법원 2016.9.21. 선고 2015가합506647 판결

1. The Defendant shall pay to the Plaintiff 189,945,400 won with 5% interest per annum from January 1, 2015 to September 21, 2016, and 15% interest per annum from the next day to the day of full payment.

2. The plaintiff's remaining claims are dismissed.

3. 3/5 of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

Purport of claim

Attached Form 3 is as stated in the "Revised Claim."

Reasons

1. Basic facts

A. On September 15, 2004, the Plaintiff entered into an insurance contract with the Defendant through Nonparty B, an insurance solicitor belonging to the Defendant Company, through Nonparty B (hereinafter “instant insurance contract”). The main contents of the instant insurance contract are the Plaintiff’s insurance premium of KRW 8,91,100 per month every ten years; however, the Plaintiff’s father, Nonparty C, who is the Plaintiff’s father, has died during the insurance period, shall receive insurance premium of KRW 1 billion and guarantee period.

B. From September 15, 2004 to June 2014 after the conclusion of the instant insurance contract, the Plaintiff paid a total of KRW 1,051,067,50 as insurance premium by paying KRW 8,832,50 per month’s monthly insurance premium. From February 28, 2007 to April 17, 2014, the Plaintiff withdrawn KRW 576,204,000 in total on 29 occasions.

C. Nonparty B, who participated in the Plaintiff’s conclusion of the instant insurance contract on July 2014 and August 2014, cannot guarantee the Plaintiff’s insurance amount of KRW 1 billion as initially agreed upon because of excessive withdrawal from the Plaintiff. Nonparty B notified the Plaintiff that the instant insurance contract was void on March 2016 or that the Plaintiff would be paid KRW 40 million when the Plaintiff terminates the contract first.

D. Around October 2015, the Defendant notified the Plaintiff of the termination of the instant insurance contract as of October 1, 2015 and notified the Plaintiff of the fact that the reserves could not cover the monthly substitute premium due to excessive withdrawal, and that the instant insurance contract was terminated as of October 1, 2015. In the event that the Plaintiff does not want the termination of the insurance contract, the Defendant notified the Plaintiff of the payment of the premium so that the monthly substitute premium would be normally appropriated within 15 days from the date of receipt of the notice. However, the Plaintiff

[Ground of Recognition] Facts without dispute, entry of Gap's evidence 1 to 4, entry of Eul's evidence 1 to 11, witness Eul's testimony, and purport of whole pleadings

2. Each argument of the parties

A. The plaintiff's assertion

When concluding the instant insurance contract, the Defendant is obligated to provide the Plaintiff, a policyholder, with a specific and accurate explanation of the insurance product. In particular, matters such as the limit to which withdrawal is possible under the instant insurance contract, may occur when the contract is terminated halfway due to excessive withdrawal as in the case of the Plaintiff, and thus, constitutes an important matter that requires an explanation of the insurance company at the time of concluding the insurance contract. Nevertheless, the Defendant failed to perform the above duty to explain to the Plaintiff, thereby incurring loss of the Plaintiff’s insurance premium amounting to approximately KRW 480 million. Accordingly, the Defendant is liable to pay the Plaintiff the said amount of loss and damages for delay.

B. Defendant’s assertion

The plaintiff entered into the insurance contract of this case for the purpose of property inheritance, and thus the matters concerning early withdrawal do not fall under the important part of the contract, and thus, the defendant does not have to explain to the plaintiff. Even if the defendant's duty to explain on the matter concerning early withdrawal from home is acknowledged, the defendant provided sufficient explanation that the insurance contract may be terminated early when he excessively withdraws to the plaintiff through an insurance solicitor at the time of the contract, and the defendant provided sufficient explanation that the insurance contract may be terminated early, and even on the screen related to early withdrawal from the Internet homepage of the defendant company, the death insurance amount shall be reduced at the time of early withdrawal, and the contract may be terminated early at the time of excessive withdrawal.

3. Determination

A. Characteristics of the instant insurance contract

1) Life insurance is a product that guarantees the life of the insured until his/her death, and is a product that does not comply with the time and cause of his/her death if the insured dies. Social insurance is a kind of life insurance that covers death insurance proceeds and reserves, and is clearly divided into a part of the savings insurance premium used for investment in order to form a reserve fund, and the amount and time of payment of the premium can be adjusted, and an early withdrawal can be possible. However, in the event that there is a shortage in the operating reserve to guarantee the insurance proceeds due to early withdrawal of a certain amount, the payment of the agreed insurance proceeds becomes impossible, and the insurance company can terminate the contract on this ground, and from the standpoint of the policyholder, it is required to pay attention to avoid a shortage of operating reserve at the time of early withdrawal.

2) In the case of the instant insurance product, it is possible to increase the insurance premium (insurance premium for guaranteeing the life of the insured) and fees (hereinafter referred to as “monthly substitute insurance premium” to the extent that it can be appropriated to cover the risk insurance premium (insurance premium for guaranteeing the life of the insured) and fees (hereinafter referred to as “monthly substitute insurance premium”) to be paid each month from the operating reserve. In the event that the operating reserve fund falls short of the monthly substitute insurance premium for the remaining insurance period due to the early withdrawal, the insurance contract becomes invalid and the policyholder cannot receive the insurance premium already paid.

(b) Whether matters concerning mid-to long-term withdrawal are subject to the duty to explain;

1) In light of the purpose of legislation and the principle of good faith under Article 3(3) of the Regulation of Standardized Contracts Act, Articles 95(1) and 97(1)1 of the Insurance Business Act, Article 42(1) of the Enforcement Decree of the Insurance Business Act, and Article 638-3(1) of the Commercial Act, an insurance company or a person engaged in the soliciting of insurance is obligated to explain to the contractor, at the time of concluding the insurance contract, important matters of the relevant insurance contract, regardless of whether or not

In particular, the importance of the duty of explanation of the above insurance company and insurance solicitor is more emphasized because the new insurance company recently appeared may lose the insurance premium that has been terminated in the middle of the insurance contract due to its structure very complicated and difficult, but the unpaid insurance premium and the early withdrawal.

2) In concluding or soliciting an insurance contract with a customer, an insurance company or a person engaged in insurance solicitation is obligated to protect the customer so that the customer can reasonably make a decision on whether to conclude the insurance contract based on the information by clearly explaining the payment of premiums, the grounds for paying insurance proceeds and refunds for termination of payments, the calculation criteria for such amount, and the important matters of the insurance contract that can identify the characteristics and risks of individual insurance products, such as investment type and structure, in the case of variable amount of insurance contracts. If such obligation is violated, the insurance company or the person engaged in insurance solicitation is liable for compensating the customer for damages incurred therefrom pursuant to Article 750 of the Civil Act or Article 102(1) of the former Insurance Business Act (amended by Act No. 10394, Jul. 23

In this context, whether an insurance company or insurance solicitation worker is required to explain to a customer certain extent the nature and risk level of insurance products, customer’s experience in purchasing insurance policies, understanding ability, etc. However, the duty of an insurance company and insurance solicitation worker as stipulated in Articles 97(1) and 95(1) of the former Insurance Business Act, Article 42 of the former Enforcement Decree of the Insurance Business Act (amended by Presidential Decree No. 20653, Feb. 29, 2008) is a significant standard for determining the content of the duty of an insurance company and insurance solicitation worker. In addition, if it is difficult to explain the important matters of the insurance contract solely based on the insurance terms and conditions, the insurance company or insurance solicitation worker should explain important matters of the insurance contract regarding the characteristics and risk of individual insurance products through the method of using additional data, such as product specifications, so that customers can understand such important matters (see, e.g., Supreme Court Decision 2010Da34159, Jun. 13, 2013).

3) In this case, the insurance products of this case are operated with the structure where the insurance contract is invalidated unless the monthly substitute premium is paid in excess of the remaining insurance period due to excessive expansion of the insurance contract, and the policyholder is not able to refund the insurance premium already paid. Thus, there is a risk that the insurance contract will lose the insurance premium already paid. In particular, the plaintiff would have been deemed to have had the intention to raise the business fund conveniently by utilizing the above mid-to-date function as one of the characteristics of the insurance products of this case, and it is reasonable to view that the above "the limit to which it is possible to withdraw" or "the standard to determine the early withdrawal" or "the insurance company or the insurance solicitor's explanation of important matters when considering the purpose of concluding the insurance contract of this case, the characteristics of the insurance contract of this case and the risk of insurance contracts are considered to be necessary.

C. Determination as to whether the Defendant violated the duty to explain

1) In full view of the descriptions of Gap evidence Nos. 1 to 9, Eul evidence Nos. 1 to 16 (including each number), Eul evidence Nos. 1 to 16, Eul witness Eul's testimony and the whole purport of the pleadings, the following circumstances are recognized:

① The insurance contract of this case is operated in a structure where the operating reserve falls short of the monthly substitute insurance premium of the remaining insurance period due to the withdrawal from the policyholder’s middle-standing. The insurance subscription form at the time of the conclusion of the insurance contract of this case and the insurance terms and conditions do not explain the standard to which extent it is possible to cover up, and the total amount of the total amount of the premium paid by the contractor shall not exceed the total amount of the insurance premium paid by the contractor, and in the case of excessive withdrawal, the contract can be terminated.

② Social insurance, such as the instant insurance product, was a product first released from Korea around February 2004, and the Plaintiff and Nonparty C had no experience in purchasing the insurance product similar to the instant insurance product prior to the conclusion of the instant insurance contract.

③ Nonparty B, an insurance solicitor of this case, was unaware of the criteria for determining whether the instant insurance contract was excessively advanced, and did not explain the said criteria to the Plaintiff and Nonparty C.

④ In the case of the insurance product of this case, even if it is impossible to specify the amount of excessive mid-to long-term increase in operating reserves and monthly substitute premiums when the policyholder withdraws in the middle of the insurance period and increases or falls short of the premiums for the remaining insurance period due to the increase or decrease of premiums, it would be difficult to sufficiently explain in the way of simple calculation that the insurance contract may be invalidated if the operating reserves fall short of the monthly substitute premiums for the remaining insurance period due to the increase or decrease of the premiums for the insurance period. In addition, it is not deemed technically difficult to indicate that the amount of early increase in operating reserves and monthly substitute premiums at the time of early withdrawal for each policyholder from the screen related to the early withdrawal of the defendant company's website is displayed at the time of early withdrawal. In fact, the defendant should explain that the annual amount of accumulation in relation to the limit of early withdrawal of the insurance product of this case should exceed 12 times the basic insurance premiums (basic insurance premiums) and that the total amount of additional premiums already paid by each time exceeds the total amount of the insurance premiums already paid.

⑤ Nonparty M&C Co., Ltd., a same industry, sold insurance products similar to the instant insurance products at around 2005, and subsequently withdrawn from China to the extent that the cancellation refund does not exceed 2/2 months, i.e., monthly amount of deduction for cancellation, and explained more specifically (see Evidence 15).

2) In full view of the above circumstances, it is reasonable to view that the defendant and the non-party B did not fully explain the risk of termination of the contract due to the above withdrawal, such as the fact that the contract may be terminated halfway to the plaintiff at the time of the conclusion of the insurance contract in this case, and that the defendant and the non-party B did not fully explain the risk of termination of the contract due to the above withdrawal, since the defendant violated the duty to explain.

D. Occurrence and scope of liability for damages

1) An insurance company or an insurance solicitor is obligated not only to pay premiums, pay insurance proceeds, or refund money for termination, but also to provide a clear explanation of the nature and risk of individual insurance products such as investment type and structure in cases of variable insurance contracts so that customers may reasonably make a decision on whether to conclude an insurance contract based on information when entering into an insurance contract with a customer. If such obligation is violated, the insurance company or the insurance solicitor is liable for compensating the customer for losses incurred therefrom pursuant to Article 750 of the Civil Act or Article 102(1) of the former Insurance Business Act (amended by Act No. 10394, Jul. 23, 2010) (see, e.g., Supreme Court Decision 2012Da2242, Oct. 27, 2014).

2) It is reasonable to view that the Plaintiff’s loss incurred by the Plaintiff as the Plaintiff’s violation of the Defendant’s duty to explain excessively advanced out reserves without recognizing the risk therefrom and eventually invalidated the insurance contract, is 474,863,50 won, subtracting the Plaintiff’s total sum of KRW 576,204,00 from the total insurance premium paid by the Plaintiff and KRW 1,051,067,000 (=1,051,067,000 - KRW 576,204,00).

The Defendant asserts that the Plaintiff gains profit from guaranteeing risks from the conclusion of the instant insurance contract to the date of termination of the contract due to the unpaid additional premium upon the conclusion of the contract, and thus, the amount equivalent to the monthly substitute premium should be deducted. However, it is difficult to view that the Plaintiff’s profit from guaranteeing risks arising from the instant insurance contract is the same as the monthly substitute premium, and it is practically impossible to calculate the amount of such profit. Therefore, it should be considered as follows.

3) Meanwhile, the base date for calculating damages for delay for such damages is October 1, 2015, which is the date of termination of the insurance contract of this case where damages for the tort of this case occurred due to the Defendant’s tort.

E. Limitation of liability

1) If the victim was negligent with regard to the occurrence or expansion of damage caused by a tort, it should be taken into account as a matter of course in determining the scope of the tortfeasor’s compensation (see, e.g., Supreme Court Decision 2007Da76733, Mar. 11, 2010). In full view of the purport of the argument in the entirety of the evidence examined above, ① the defendant and the non-party B, although the defendant and the non-party B were not adequate, they explained that the contract may be invalidated halfway if they were excessively advanced to the plaintiff although they were not sufficient, ② the plaintiff withdrawn the total amount of KRW 576,204,00 over 29 times, which is excessive, and ③ the non-party B continuously met the plaintiff at the customer management vehicle during the insurance period of this case, and sent warning that the contract may be invalidated halfway, ④ the defendant could not have the opportunity to pay the insurance premium before the termination of the insurance contract of this case, and finally, the plaintiff could have maintained the insurance contract of this case.

2) Considering the above circumstances, it is reasonable to limit the Defendant’s liability to the extent of 40% of the total amount of damages. As such, the Defendant’s compensation amount is KRW 189,945,400 (= KRW 474,863,500).

F. Sub-decision

Therefore, the defendant is obligated to pay to the plaintiff 189,945,400 won and damages for delay calculated at the rate of 5% per annum under the Civil Act from October 1, 2015, which is the date of termination of the insurance contract of this case, to September 21, 2016, which is deemed reasonable for the defendant to dispute about the existence and scope of the obligation, and the amount of damages for delay calculated at the rate of 15% per annum under the Act on Special Cases concerning Expedition, etc. of Legal Proceedings from the following day to the date of full payment.

4. Conclusion

Therefore, the plaintiff's claim is justified within the above scope of recognition, and the remaining claims are dismissed as it is without merit. It is so decided as per Disposition.