Whether the damage caused by an insurance company to be liable for employers by deceiving the money equivalent to insurance premiums from the customers who have bought false insurance products by soliciting the employees of the insurance company constitutes "the fraudulent and direct loss that was wholly and directly incurred from the fraudulent act or the fraudulent act prescribed in the comprehensive insurance contract of the financial institution" (negative)

Considering that the comprehensive insurance contract of a financial institution is not a liability insurance as a kind of flight security insurance, it shall not include indirect damages because it does not include all the damage that is a proximate causal relation from the fraudulent act, etc. of the victim and the insured and their property damage, etc., as referred to in Article 1 of the Security Clause. If an employee of an insurance company takes the property of a third party by fraudulent means, the person who takes the direct damage from such act is not the third party, but the third party is not the insured, and the damage incurred by the insurance company, which is the insured and the employer, is the result of the lawsuit claiming the employer's liability against the insured, and the damage compensation paid by the insurance company, the insured and the employer, the insured, shall not be included in the comprehensive insurance contract of a financial institution.

Article 756 of the Civil Code, Article 5(2) of the Regulation of Standardized Contracts Act

Dongyang Fire and Marine Insurance Co., Ltd. (Law Firm Square, Attorneys Yu-hee et al., Counsel for the defendant-appellant)

Korea Fire Marine Insurance Co., Ltd. (Attorney Byung-jin et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2000Na56572 delivered on June 20, 2001

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

1. Regarding fact-finding

A. Based on its adopted evidence, the court below acknowledged the following facts: (a) Nonparty 1, an employee of the plaintiff, recommended the customers to purchase a false insurance product called a welfare accident insurance contract with the content that the plaintiff did not deal with; (b) obtained money equivalent to the insurance premium paid from 26 customers from December 1992 to December 196; and (c) as a result, the customer, who was the victim, filed a lawsuit against the plaintiff against the plaintiff, paid approximately KRW 1.5 billion in total with the adjustment agreement, etc.; (d) Article 1 of the comprehensive insurance contract of the financial institution that the plaintiff concluded with the defendant, as the insurer, paid damages to the insured, regardless of the intention of causing damages to the employee or obtaining financial benefits, or from the fraudulent act of the employee's fraudulent act or the act committed in collusion with other persons; and (e) Article 18 of the contract provides that the insured's damages incurred directly or indirectly to the insured's property and damages incurred by the insured's act, regardless of the nature of "an employee's direct or indirect compensation for damages" as stipulated in the type of statutory liability.

B. Compared with the evidence in the records, there is no illegality such as the fact-finding of the court below and the judgment of evidence are justified, failing to exhaust all necessary deliberations, or violating the rules of evidence.

In addition, in this case where the defendant also subscribed to the general insurance of the financial institution operated by the plaintiff as the insured, and the terms and conditions of the general insurance of the financial institution also used the same standard terms and conditions as the terms and conditions of the insurance of this case, the plaintiff and the defendant cannot find out any reliable evidence to deem that there was an implied agreement between the plaintiff and the defendant to compensate for the employer's liability owed to the third party at the time of the occurrence of the accident like the above crime by the non-party 1. Thus, the judgment of the court below based on the same premise is just, and there is no error in the misapprehension of the law of evidence

2. As to the determination of law

A. The court below held that, based on the above facts, Article 18 of the above exemption clause provides that the plaintiff company shall not guarantee the loss suffered by the plaintiff company due to the plaintiff company's burden of legal liability on the third party. However, in the proviso of this clause, where compensation for direct and financial loss secured by the insurance policy is required, damage suffered by an exceptional legal liability is also secured. Article 3 of the exemption clause provides that the loss caused by the employee's illegal act or fraudulent act shall not be deemed direct loss caused by the employee's act, regardless of whether it is direct or indirect, unless it is guaranteed by Article 1 of the collateral clause, unless it is provided directly or indirectly, the loss caused by the employee's illegal act or fraudulent act shall not be deemed direct loss caused by the employee's act. However, the court below held that the loss suffered by the plaintiff does not constitute "the loss directly and directly caused by the employee's illegal act or fraudulent act" as provided by Article 18 of the above collateral clause, but rather, it does not belong to "the insured's legal liability" as provided by Article 18 of the exemption clause.

B. The contents of the general terms and conditions unilaterally proposed by an enterpriser should be interpreted in favor of customers when they are unclear or doubtful, and even in that case, objectivity and unification should be maintained so as to be fair in accordance with the principle of trust and good faith, barring any special circumstances. In this case, where the Plaintiff and the Defendant, which is an insurance company operating as insurance products of the same kind, as a financial institution comprehensive insurance, have agreed to use them in the position of the insurer and the insured and to use the typical terms and conditions widely used in the industry as they are without any special revision, there is no special circumstance that should be limited interpretation in terms of customer protection, beyond objective and uniform interpretation of the terms and conditions. The interpretation of the above terms and conditions of the court below on the premise of the purport is justified and there is no error of misapprehending the legal principles on the interpretation of expression of intent between the parties

In addition, the governing law of the above insurance terms and conditions of the English law has not been verified by all the evidence submitted by the parties as the English law and by the fact-finding proceedings, the interpretation of Article 1 and Article 18 of the Security Clause and the interpretation of the scope of application, or by the English precedents or commercial customs in this case, the contents of the contract terms and conditions should be reviewed according to the reasoning of the general legal interpretation standards (see Supreme Court Decision 98Da35037 delivered on June 9, 200), and considering that the general insurance of the financial institution is not a liability insurance as a kind of flight security insurance policy, the comprehensive insurance of the financial institution will be considered as a type of insurance as referred to in Article 1 of the Security Clause. Considering that it is not a liability insurance, it would be objectively and uniformly construed that the "property of the insured and its property directly related to the insured" as referred to in Article 1 of the Security Clause does not include all the damage related to the considerable person.

Therefore, in cases where an employee takes a third party's property by fraud as in the instant case, the person who received direct damage from the employee is not the third party, but the insured and the employer's damage compensation incurred by the Plaintiff, the insured and the employer, as a result of the lawsuit claiming the employer's liability against the insured by the third party, falls under the indirect and result damage, and thus, it does not constitute a direct damage compensation from the instant insurance.

From the same point of view, the judgment of the court below is just, and there is no error of law by misapprehending the legal principles on the application of the governing law or the legal principles on liability insurance.

3. Conclusion

Therefore, the plaintiff's appeal is dismissed and the costs of appeal are assessed against the plaintiff. It is so decided as per Disposition by the assent of all participating Justices who reviewed the appeal and the supplementary appellate brief are assessed against the plaintiff.

Justices Lee Hong-hoon (Presiding Justice)