AES Co., Ltd. (Attorneys Seo Jong-soo et al., Counsel for the defendant-appellant)

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

September 5, 2012

Gwangju District Court Decision 201Gahap7743 Decided November 4, 2011

1. Of the judgment of the court of first instance, the part against the defendant in excess of the order to pay is revoked, and the plaintiff's claim corresponding to the revocation portion is dismissed.

The defendant shall pay to the plaintiff 86,975,00 won with 5% interest per annum from January 8, 201 to November 4, 2011, and 20% interest per annum from the next day to the day of full payment.

2. The defendant's remaining appeal and the plaintiff's incidental appeal are dismissed, respectively.

3. Costs arising from an appeal and an incidental appeal shall be borne by each person;

1. Purport of claim

The defendant shall pay to the plaintiff 124,250,000 won with an amount calculated by the ratio of 6% per annum from August 16, 2010 to the service date of a copy of the claim of this case and the application for modification of cause of this case, and 20% per annum from the next day to the day of complete payment.

2. Purport of appeal

The part against the defendant in the judgment of the court of first instance shall be revoked, and the plaintiff's claim corresponding to the revocation shall be dismissed.

3. Purport of incidental appeal;

Of the judgment of the court of first instance, the part against the plaintiff falling under the order to pay below shall be revoked. The defendant shall pay to the plaintiff 124,250,000 won with an amount calculated by the rate of 6% per annum from August 16, 2010 to the service date of a copy of the application for the purport of the claim of this case and the alteration of the cause thereof, and 20% per annum from the next day to the day of complete payment. Preliminary defendant shall pay to the plaintiff 37,275,00 won and the amount calculated by the rate of 20% per annum from the day after the delivery date of a copy of the complaint of this case to the day of complete payment.

1. Basic facts

A. On July 6, 2010, the Seodaemun Industrial Co., Ltd. (hereinafter “Saeng Industrial”), which was a subordinate company of the Yeongdeungpo Industrial Co., Ltd. (hereinafter “Yatech”) (hereinafter “Saeng Industrial”), used Nonparty 4 on July 6, 2010, and then purchased industrial accident compensation insurance, etc., and paid benefits. At the time, employees of the Saeng Industrial and Young Tech were engaged in the performance of their duties within the same workplace. Nonparty 6, who was the representative director of the Saeng Industrial, served as a director of the Satech.

B. The Defendant, via Nonparty 1, via Nonparty 1, entered into a “New-Pan Insurance Contract (hereinafter “instant insurance contract”) with the content that guarantees the death of a disaster, a disaster disorder, a disaster operation, a disaster hospitalization, a new industrial accident injury, etc.” (hereinafter “instant insurance contract”) with the insured Nonparty 4, an insurance beneficiary Young-gu et al. without Nonparty 1’s written consent, set at KRW 10,00 per month, insurance premium of KRW 46,30.

C. On August 15, 2010, Nonparty 4 received the judgment of Grade 3 on September 11, 2010 on “the instant accident,” which requires approximately ten (10) weeks’ medical treatment from the workplace of the Young Tech; and (2) Nonparty 4 did not know all of the fact that the instant insurance contract was concluded until the instant accident occurred.

D. On December 17, 2010, the Western industry merged the field dynasium, and changed its trade name to the Plaintiff on December 20, 2010.

E. Meanwhile, when the instant insurance contract is based on the premise that it is valid, the insurance proceeds arising from the instant accident are KRW 124,250,000, and according to the terms and conditions of the instant insurance contract, the Defendant is obliged to pay the insurance proceeds within three business days from the date of receiving the claim for the payment of the insurance proceeds. The Plaintiff claimed the Defendant to pay the insurance proceeds on January 4, 201.

[Ground of recognition] Facts without dispute, Gap 1, 2, 4, 6, 7 evidence (including branch numbers; hereinafter the same shall apply), Eul 1, 2, and 3 evidence, and the purport of the whole pleadings

2. Judgment on the main claim

A. Articles 731(1) and 739 of the Commercial Act provide that, in addition to concerns over harming the so-called gambling insurance or the insured, an insured person’s written consent shall be required from the insured person’s insurance contract covering the death or injury of another person without the insured’s consent in order to avoid the risk of infringing public order and good morals, and Article 735-3(1) of the Commercial Act provides that, as an exception, in the case of an insurance contract involving the whole or part of the members belonging to an organization as the insured in a lump sum as an insured under the rules within the organization, the insured person’s individual consent may be predicted in advance, and thus, it may be substituted by the collective agreement, rules of employment, etc. on group insurance falling under a collective consent of the insured person. However, in this case, it is problematic whether the insurance contract of this case entered into between the insured person and Nonparty 4, who is an employee belonging to the Seodaemun industry, and as the insured person, would absorb the effect of the insurance contract of this case between the Defendant and the insured.

B. For the following reasons, the Plaintiff asserts that the Defendant is obligated to pay the insurance proceeds under the instant insurance contract to the Plaintiff that merged the Yongdodominion and its absorption with respect to the instant accident.

(1) The Seodaemun Industrial Complex and the Yeongdeungpo Industrial Complex are a separate company in form, but they were established by the same person, and they were used as the same office, workplace, etc. without classifying them, and their employees can be viewed as one company in substance, such as conducting business affairs. Although Nonparty 4 is an employee belonging to the Seodaemun Industrial Complex in form, considering the above circumstances, he can be viewed as an employee belonging to the Seo Seotech Industrial Complex. On the other hand, the Youngtech Industrial Complex does not require the written consent of Nonparty 4 in entering into the instant insurance contract, since there is an agreement on the subscription of organization insurance and there is no written consent of Nonparty 4 in concluding the instant insurance contract. Thus, the instant insurance contract concluded with Nonparty 4 as the insured is valid.

(2) Even if Nonparty 4 is not recognized as an employee belonging to the field of the field of the field of the judgment, there was an agreement between the field of the judgment and the Defendant, regardless of whether the insured belongs, on the ground that, in the event of an accident involving a worker working within the field of the field of the field of the field of the factory of the field of the field of the safety judgment, the beneficiary, is liable to pay the insurance proceeds under the said agreement.

(b) Markets:

(1) First, as to whether Nonparty 4, who is an employee belonging to the Seodaemun Industry, can be seen as an employee belonging to the Seo Seodong Industries. At the time of the accident of this case, employees belonging to the Seo Seodong Industries and the Young River at the time of the accident of this case, have been engaged in the performance of their duties within the same workplace, and Nonparty 6, who was employed as the representative director of the Seonam Industries, was also employed as a director of the Youngtech Industry. The two companies, as the relationship between the prime contractor and the subordinate company, were similar to the purpose of the establishment or the implementation of the business, and the fact that the two companies became a single company after the merger, cannot be seen as an employee belonging to the Youngtechdo, on the ground that the two companies are in fact identical beyond the close relationship, and this does not change the fact that the Defendant paid the insurance money to the Youngtech, and there is no reason to view Nonparty 4 as an employee belonging to the Youngtech. Therefore, the Plaintiff’s assertion that the above assertion is without merit.

(2) Next, as to whether there was an agreement between the defendant and the defendant on whether there was an agreement between the defendant and the defendant on the payment of insurance proceeds to the defendant, an insurance beneficiary, in the event of an accident involving workers working within the factory of the field of the field of the field of the examination, regardless of whether the insured belongs, it is insufficient to acknowledge that there was an agreement on the content as alleged in the plaintiff. In addition, even if there was an agreement on the above contents of the family affairs, it is in violation of the purpose of legislation of the mandatory provisions under the Commercial Act as seen earlier, and the plaintiff's assertion also is without merit.

3. Determination on the conjunctive claim

A. The plaintiff's assertion

Even if the insurance contract of this case is null and void, the plaintiff could not receive the insurance money due to the violation of the duty to explain by the non-party 1, who is an insurance solicitor of this case. Thus, the defendant is liable to compensate for the amount equivalent to the insurance money under the insurance contract of this case in accordance with Article

(b) Markets:

(1) According to Article 756 of the Civil Act, an insurance company is liable to compensate for any loss caused by an insurance solicitor, etc. to policyholders while conducting the insurance solicitation. This is significant in order to protect the interests of policyholders and to promote the healthy growth of the insurance business at the same time on the premise that a tort against policyholders, such as an insurance solicitor, etc. is established, by imposing liability on the insurer for damages caused by an insurance solicitor, etc. with respect to the insurance solicitation on the premise that the tort against policyholders, such as an insurance solicitor. Meanwhile, when entering into an organization insurance contract covering death or bodily injury of another person as an insurance accident, an insurance solicitor has the duty of care to take measures so that he/she can take measures to execute an effective insurance contract by giving a policyholder an opportunity to meet the requirements by explaining in detail and in detail the validity requirements of the organization insurance, the insurance solicitor is liable to compensate for the loss equivalent to the insurance proceeds to the policyholder pursuant to the above provisions of the Insurance Business Act (see, e.g., Supreme Court Decision 2006Da6539, Apr. 27, 2006).

(2) In the instant case, considering the following facts: (a) Nonparty 1’s duty to explain the fact that the Plaintiff had not been entered into an insurance contract on the part of Nonparty 1, Nonparty 4, and Nonparty 1’s testimony to the effect that it would have been difficult to conclude the insurance contract on the part of Nonparty 4; (b) Nonparty 1’s employees could not have entered into the insurance contract on the part of Nonparty 4 with Nonparty 4 with Nonparty 4 with Nonparty 5 with Nonparty 1’s employees for the same reason that it would have been difficult to conclude the insurance contract on the part of the Plaintiff; and (c) Nonparty 1 could have concluded the insurance contract on the part of Nonparty 4 with Nonparty 4 with Nonparty 4 with Nonparty 4’s employees for the same reason that it would have been difficult to conclude the insurance contract on the part of Nonparty 1 with Nonparty 4 with Nonparty 4’s employees for the same reason as Nonparty 1’s employees to know that the insurance contract had not been concluded on the part of Nonparty 1 with Nonparty 4’s employees for the same reason.

(3) However, despite the fact that he had already experienced many insurance contracts prior to the conclusion of the instant insurance contract as a policyholder, he/she was aware that the Seodaemun Industrial Complex and the Yeongdeungpo Industrial Complex are practically the same company or is an employee in the same factory, regardless of whether he/she belongs to the company, and thus, he/she concluded an insurance contract with Nonparty 4, who is not an employee under his/her control, as the insured. Thus, it is reasonable to limit the Defendant’s liability for damages to 70% by taking into account all the circumstances, such as the developments leading up to the conclusion of the instant insurance contract as seen earlier, the relationship between the tobacco industry and the Yeongdeungpo Industrial Complex, etc.

(4) If so, the defendant is liable to pay the plaintiff damages for delay calculated at the rate of 86,975,00 won (124,250,000 won x 0.7) and the damages for delay calculated at the rate of 5% per annum under the Civil Act until November 4, 201, which is the date when the judgment of the court of first instance is rendered, until November 4, 201, and 20% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings until the day after the day when the accident of this case occurred (On the other hand, the plaintiff claimed damages for delay from the day following the day when the accident of this case occurred until January 7, 2011, but the defendant is obliged to pay the insurance proceeds within three business days from the day when the claim for the payment of the insurance proceeds was received from the plaintiff under the insurance contract of this case, and the plaintiff's claim for damages for delay within the above three business days after the day when the above claim for damages for delay occurred.

4. Conclusion

Therefore, the plaintiff's main claim in this case is dismissed as it is without merit, and the conjunctive claim is accepted within the scope of the above recognition, and the remainder of the conjunctive claim is dismissed as it is without merit. Since the part against the defendant who ordered payment in excess of the above recognition amount in the judgment of the court of first instance which partially different conclusions is unfair, the plaintiff's claim corresponding to the cancellation portion is dismissed, and the remaining appeal of the defendant and incidental appeal of the plaintiff are dismissed as it is so decided as per Disposition.

Judges Donsung (Presiding Judge)