Whether an insurer is liable for damages under Article 102(1) of the Insurance Business Act in cases where an insurance solicitor is unable to receive the insurance proceeds because the insurance contract becomes null and void due to his/her failure to fully explain the terms of the duty of care borne by the insurance solicitor at the time of concluding an organization insurance contract covering the death or injury of his/her member as an insured event (affirmative)

When concluding a group insurance contract which covers the death or injury of its members as an insured accident, the insurance solicitor has a duty of care to explain in detail the policyholders on the valid requirements of group insurance so that the insurance contract which was concluded at the time of conclusion of the insurance contract is not null and void, so that at least the policyholders are given an opportunity to satisfy such requirements to take measures so that the insurance contract can be concluded valid. Nevertheless, if the insurance solicitor does not fully explain the valid requirements of the insurance contract, the insurance contract becomes null and void due to the defect of the requirement, and the policyholder is not paid the insurance money despite the occurrence of the insured accident, the insurer is liable to compensate the policyholders for the damage equivalent to the insurance money pursuant to Article 102 (1) of the Insurance Business Act

Articles 638-3(1) and 735-3 of the Commercial Act; Article 102(1) of the Insurance Business Act

A. E. E.S.

KNF Life Insurance Co., Ltd. (Law Firm Jeongn, Attorneys Kim Byung-soo et al., Counsel for the plaintiff-appellant)

Gwangju High Court Decision 2011Na6488 decided September 19, 2012

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

In concluding a group insurance contract which covers the death or injury of its members as an insured event, the insurance solicitor has a duty to explain in detail the policy holder on the valid requirements of group insurance so that the insurance contract which was concluded at the time of conclusion of the insurance contract is not null and void, so that at least the policy holder is given an opportunity to satisfy such requirements to take measures so that the insurance contract can be concluded valid. Nevertheless, the insurance contract becomes null and void due to the defect of the requirement that the insurance solicitor did not fully explain the valid requirements of the insurance contract, and as a result, the policyholder is not entitled to receive the insurance money despite the occurrence of the insured event, the insurer is liable to compensate the policy holder for the damage equivalent to the insurance money pursuant to Article 102 (1)

The lower court determined that: (a) Nonparty 1, an insurance solicitor of the Defendant, was an insurance solicitor from April 207 to work as an insurance solicitor; (b) around October 2009, Nonparty 2, who was not an insurance solicitor, was also aware of the following facts; and (c) Nonparty 1, who was not a party to the instant insurance contract, was also aware of the fact that it was not an insurance solicitor’s duty to inform the Plaintiff of the fact that it was not an insurance solicitor; and (d) Nonparty 1, who was not a party to the instant insurance contract at the time of entering into the instant insurance contract, was not a party to the instant contract; and (e) Nonparty 4, who was not a party to the instant insurance contract, was aware of the fact that it was difficult for the Plaintiff to enter into the instant insurance contract with Nonparty 4’s employees at the time of entering into the instant insurance contract; and (e) Nonparty 1, who was not an insurance solicitor’s employee at the time of entering into the instant contract with Nonparty 4’s employees at the time of the instant insurance contract.

In light of the aforementioned legal principles and the records, the part of the judgment of the court below, which determined that, in the event that the delivery industry was an employee of Nonparty 4 and entered into an insurance contract with the Defendant with the same content as the insurance contract of this case, in terms of the insurance condition or the amount of insurance money to be received, there is no particular difference with the insurance contract of this case that he concluded with Nonparty 4 as his own employee, is somewhat inappropriate, but such inappropriate decision cannot be deemed to have affected the conclusion of the judgment, and contrary to what is alleged in the grounds of appeal, the court below did not err

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Poe-dae (Presiding Justice)