(영문) 서울고등법원 2012.7.4.선고 2011나48850 판결

The defendant shall pay to the plaintiffs 48, 531, 775 won and 6% interest per annum from February 1, 2011 to July 4, 2012, and 20% interest per annum from the next day to the day of full payment.

2. Each of the plaintiffs' remaining appeals is dismissed.

3. All costs of the lawsuit shall be borne by the defendant.

4. The payment portion of paragraph (1) may be provisionally executed.

Purport of claim and appeal

The judgment of the first instance shall be revoked. The defendant shall each be 48,531,775 won to the plaintiffs and the defendant shall be 2 February 2011.

1. To pay 20% interest per annum from the day of full payment to the day of full payment.

Reasons

1. Determination on the cause of the claim

가. 인정사실 ( 1 ) 원고 ●●●은 2008. 12. 5. 피고와 ◆◆◆ ( 1987. 8. 13. 생 ) 을 피보험자로, 피보험자의 상속인을 보험수익자로 하는 무배당 수호천사프리스타일 종신보험계약 ( 이하 ' 이 사건 보험계약 ' 이라 한다 ) 을 체결하였는데, ◆◆◆의 사망으로 인한 보험금은 1억 원 ( = 주계약 사망보험금 6, 000만 원 + 재해사망특약 사망보험금 4, 000만 원 ) 이다 . ( 2 ) 이 사건 보험계약에 적용되는 약관의 주요 내용은 다음과 같다 .

【State Contract (Life Insurance Clause)】

Article 18 (Insurance Accidents for which Insurance Proceeds Not Paid)

1. In any of the following cases, the defendant may terminate this contract at the same time as he/she does not pay insurance proceeds or exempt the payment of insurance premiums when the cause for the payment of insurance proceeds arises:

1. Where the insured has intentionally impaired himself/herself;

However, this shall not apply where it is proved that the insured has impaired himself/herself in a state of being unable to make a free decision due to mental illness, etc. and where it is proved that the total disability payment rate of various physical parts in the disability classification table is not less than 80% due to suicide or injury to himself/herself after two years from the date of commencing the contract guarantee.

[Terms and Conditions of Special Agreement for Disaster Death]

Article 10 (Types of and Grounds for Payment of Insurance Money)

The defendant shall pay the amount of death insurance under a special contract as the death insurance amount if the insured under a special contract has become a disability with at least 80% of the total disability payment rate for all parts of the same disaster in the table of disability classification (refer to the table of disaster classification) due to a disaster during the insurance period (refer to the table of disability classification):

Article 15 (Mutatis Mutandis Application of Provisions of Main Contract and Special Agreement for Collective Handling)

(1) Matters not stipulated in this special agreement shall be at the risk of complying with the provisions of the principal agreement.

【Disaster Classification Table】

1. Any of the following disasters subject to coverage shall be bound by the payment of insurance proceeds in accordance with the terms and conditions of this insurance:

(1) An accident resulting from a contingency falling under the Korean Standard Disease or Private Classification (SOY84).

2. Where an accident for which insurance proceeds are not paid falls under any of the following subparagraphs, the insurance proceeds shall not be paid except in the disaster classification:

(2) The cause of the accident is as follows:

- 고의적 자해 ( X60 ~ X84 ) ( 3 ) ◆◆◆은 2010. 12. 2. 목요일 14 : 00경 자택인 서울 성북구 xxxx 222 xx아파트 103동 1903호의 베란다 창문을 통하여 아래로 떨어져, 두개골 골절 및 파열 등의 상해를 입고 현장에서 사망하였다 ( 이하 위 사망사고를 ' 이 사건 사고 ' 라 한다 ) . ( 4 ) 망 ◆◆◆ ( 이하 ' 망인 ' 이라고 한다 ) 이 이 사건 사고로 사망함에 따라 부모인 원고들이 각 1 / 2지분으로 공동상속인이 되었다 . ( 5 ) 피고는 2011. 1. 10. 원고 ●●●에게 기납입 보험료 2, 936, 450원을 환급하였 [ 인정근거 ] 다툼 없는 사실, 갑 제1호증의 3, 갑 제2 내지 4호증, 을가 제1호증의 3 , 4의 각 기재, 변론 전체의 취지

B. Determination

According to the above facts, the defendant is obligated to pay the insurance money of KRW 97,063,550 under the insurance contract of this case to the plaintiffs, who are the inheritors of the deceased ( = 100 million won of insurance money - KRW 2,936,450 of the paid-in premium of KRW 100 million paid by the defendant to the plaintiffs) according to their respective shares of inheritance (1/2).

2. Judgment as to the defendant's motion for discharge

A. The defendant has a duty to pay the death insurance money according to the insurance contract of this case to the plaintiffs since the accident of this case occurred due to suicide of the deceased. The defendant is not obliged to pay the death insurance money of this case to the plaintiffs.

I asserts that this case is.

B. In light of the legislative intent of Articles 659(1) and 732-2 of the Commercial Act, where suicide is stipulated as the reason for exemption of the insurer in an insurance contract which covers the death as an insured event, the suicide refers to an act of the deceased intentionally cutting his/her own life for its purpose and causing the result of the death by intentionally cutting it for that purpose, and does not include cases where the insured is unable to make free decision due to mental illness, etc. Therefore, if the direct cause of the death occurred due to external factor, the insured event constitutes an accident which is not intentional by the insured (Supreme Court Decision 2005Da49713 Decided March 10, 206).

In addition, whether or not there was a death in a state where it is impossible to make free decisions due to mental illness, etc. shall be determined by comprehensively taking into account the age and character of the person who committed the suicide, the physical and mental psychological situation of the person who committed the suicide, the outbreak time and degree of the mental illness, the detailed situation at the time of the suicide, the surrounding situation where the person was faced with the suicide, the behavior of the person who committed the suicide at the time of the suicide, the time and place of the suicide, the motive, details and method of the suicide, and the attitude of the suicide (Supreme Court Decision 2005Da70540 Decided April 14, 2006, 205Da705757 (Counterclaim))).

C. In full view of the statements in Gap evidence 6 to 11, Eul evidence 2, Eul evidence 2, Eul evidence 9 to 11 (including numbers), testimony of the appraisal witness, and the overall purport of the arguments in relation to the fact-finding with respect to the head of Korea University Cancer Hospital, the court of this case, the following facts can be acknowledged: (i) from September 2008, the deceased is the same as monitoring of the deceased himself; and (ii) on television, it is difficult to take the same sense as being aware of the other people's thoughts, and conduct a daily life like cleaning, such as cleaning. (ii) From around December 2008, the deceased started with his surrounding situation being operated by the Native group; (iii) he thought that all his actions are observed by the Native group; and (iv) from around 00 to 400, he continued to have the symptoms of the deceased from around 290 to 300,000 pupers.

In the early stage of hospitalization, Korea University Medical Center was diagnosed as a mentally divided disease by being hospitalized in the Ansan Hospital Hospital and the Protection Hospital. However, even though it appears to be avoided at the early stage of hospitalization, the idea that the person was gradually imprecing through pharmacologic treatment, etc., and that it was caused by the manipulation of the group, the person was transferred from June 2009 to an open ward from June 20, 2009. (iv) The deceased was transferred to the open ward.

7.1. 1. The deceased formed the perception of the sick, sent the will of the treatment, and it seems that the medication would also be good. The deceased discharged the hospital from the hospital to August 25, 2009 under the judgment of the state of “,” and thereafter, from September 22, 2009 to November 2, 2010, the hospital was administered in the mental department of the above hospital once again from September 22, 2009 to September 2, 201.

8. From 24.2, the volume of medication prescribed by the Deceased was reduced. 6 The Deceased did not take the volume of medication for two months prior to the occurrence of the accident, and the night prior to the occurrence of the accident in this case, the day before the occurrence of the accident in this case.

원고 ●●●에게 ' 누군가 문 앞을 서성거리고 있다 ' 는 말을 하기까지 하였다. ⑦ 망인은 2010. 11. 1. 경부터 2010. 11. 30. 경까지 공무원시험을 준비하기 위해 학원에 다녔고, 2010. 11. 26. 경에는 스스로 봉사단체에 봉사활동참여 신청을 한 후, 2010. 11. 29 .경 봉사단체 관계자와 면접일정을 맞춰 보기도 하였으며, 2010. 11. 30. 에는 사촌동생인 ■■■와 미리 약속을 하고 만나 어울리기도 하였다. ⑧ 망인은 이 사건 사고 전날인 2010. 12. 1. 밤 원고 ◎◎◎에게 해줄 것이 있다며 손에 핸드크림을 발라준 다음 원고 ◎◎◎을 꼭 안았고, 원고 ●●●에게도 ' 아빠, 제가 한 번 안아주고 싶다. ' 라는 말을 하였는데, 망인이 평소에는 위와 같은 행동을 한 적이 없었다. ⑨ 망인은 이 사건 사고일 오전에 원고 ◎◎◎과 함께 위 병원 정신과에 진료를 받으러 갔으나, 진료예약 일자가 아니어서 다시 집으로 돌아왔고, 12 : 00경 원고 ◎◎◎이 백화점으로 일하러 나가자 그 때부터 집에 혼자 있다가, 13 : 43경 원고 ●●●에게 전화하여 오전에 병원에 갔다가 진료예약일이 아니라 그냥 왔다는 등의 이야기를 약 41초간 나눈 후, 14 : 00경 이 사건 사고로 사망하였다. ① 망인은 망인의 방과 붙어있는 베란다의 창문을 통하여 추락하였는데, 위 창문 바로 앞에는 망인 가족들이 원래부터 위 창문 옆에 있는 책장에서 책을 꺼낼 때 사용하기 위하여 가져다 둔 의자가 놓여 있었고, 위 창문은 위 의자 등받이보다 높은 곳에 설치되어 있으며, 이 사건 사고 당시 방충망이 열려 있는 상태였다. ① 이 사건 사고 당시 외부인이 망인의 집 안으로 침입한 흔적은 없었고, 망인의 사체에도 이 사건 사고로 인한 상처 외에 외상이나 방어흔이 없었으며, 망인의 유서는 발견되지 않았다. ② 원고 ●●●은 이 사건 사고 당일 경찰 조사시 ' 이 사건 사고일 13 : 43경 망인과 통화할 때 망인이 죽겠다는 느낌은 받지 못하였고, 원고 ◎◎◎도 망인으로부터 죽고 싶다는 말을 들은 적은 없으나, 망인이 아파트 19층에서 뛰어내려 사망한 것이 확실하기에 부검은 원하지 않는다. ' 라는 취지로 진술하였고, 수사기관은 이 사건 사고에 관하여 타살협의점이 없고, 망인이 정신과 치료를 받아온 점을 들어 자살로 판단하였다 .

D. Comprehensively taking into account the testimony of Dog Dog 3, the result of the expert witness’s appraisal on the medical records of Dog Dog 3, the contents of the medical judgment on the appraiser Dog Dog 3, which appraised the deceased’s medical records on the following (i.e., the deceased’s medical records on June 4, 2009) are as follows 1 through 7: Dog Dog Dog Dog Dog Dog Dog Dog Dog g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g.

(4) It is difficult to see that the symptoms may rapidly deteriorate within the short period when the administration is suspended due to the characteristics of the disease. (5) The Deceased asked the doctor on August 24, 2010 that "at any time to drink the medication." The side effect or treatment period of the medication is asked to the doctor, and there are many cases where the doctor fails to properly administer the medication or to suspend the administration of the drugs in the future, regardless of whether the medication is open to the hospital. (6) Mental fissionism does not seem to have occurred at all times, and it is likely that there is a difference between the frequency and seriousness of the symptoms, depending on whether the external disorder is distorted or distorted without logical judgment on the external disorder. (7) When a reasonable judgment as an independent subject is lost, the deceased's reliance on the deceased's parents or his family members who believe that the act is likely to be performed in a state of normal mental disorder is strengthened. Therefore, it seems that it seems that there is a conflict between the deceased's mental disorder and the deceased's behavior.

E. In light of the above recognition facts and the medical judgment of the appraiser i.e., the following conditions may be inferred. In relation to the instant accident, there is no objective evidence such as the deceased’s statement of intent to commit suicide. In order to prepare for a public official’s test at least three days before the occurrence of the accident, it is difficult to deem that there was a motive for suicide to the deceased. In light of the deceased’s behavior, it is difficult for the deceased to deem that the deceased’s act was a mental compost, and it is difficult to see that the deceased’s act was the signs of suicide, and there is no other obvious motive or signs to the deceased. In addition, it appears that the deceased’s act committed suicide or signs against the deceased on August 24, 2010, the deceased complained of side effects on the administration of the windows located at around the scene, and that the deceased’s act appears to have been administered at the place where the deceased’s mental disorder was suspended before the outbreak of the accident occurred. This appears to be the same as the deceased’s mental disorder.

F. In light of the above facts and overall circumstances, the accident in this case appears to have committed suicide in a situation where the deceased was unable to make a free decision due to mental fission. Even if, during external observation in domestic affairs, the deceased was aware that he would have discontinued his own life and caused the death by doing so for its purpose, this is likely to be caused by the realization of mental fission, exchange, etc., and it is difficult to view that it would be based on the deceased’s normal perception or decision-making ability. Therefore, it is difficult to view that the accident in this case falls under “the insured’s intentional self-harm” or “the insured’s intentional harm” as stipulated by the reason for exemption in the insurance contract in this case, and there is no other evidence to support this. Accordingly, the defendant’s claim for exemption is without merit.

3. Conclusion

Therefore, the defendant is obligated to pay damages for delay to the plaintiffs at each rate of 48,531,775 won ( = 97,063,550 won x 1/2) and 20% per annum under the Commercial Act from February 1, 2011 to July 4, 2012, which is the date of the ruling of the court of the first instance that it is reasonable for the defendant to dispute as to the existence and scope of the obligation to perform as requested by the plaintiffs, and 6% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the next day to the date of full payment. Thus, each of the claims against the plaintiffs against the defendant are justified within the above recognition scope, and the remaining claims are dismissed without merit. Accordingly, the judgment of the first instance is unfair, and the payment of the above amount is revoked, and the remaining appeals by the plaintiffs are dismissed as it is without merit.