Plaintiff (Attorney Kim Young-soo et al., Counsel for the plaintiff-appellant)

Defendant (Attorney Go-jin et al., Counsel for the defendant-appellant)

November 23, 2018

Cheongju District Court Decision 2018Dadan20668 Decided May 15, 2018

1. Revocation of the first instance judgment.

2. The defendant transfers the bonds listed in the attached list to the plaintiff, and makes a notification of the transfer of claims by means of a certificate with a fixed date to the plaintiff (registration number: omitted, address: Gangnam-gu Seoul (name 1 omitted), representative: non-party 1).

3. The total cost of a lawsuit shall be borne individually by each party.

The same shall apply to the order.

1. Basic facts

A. 1) The Plaintiff is a deceased non-party 2 (resident registration number: (Omission and Address: Address 2 omitted); hereinafter “the deceased”), who is a sole heir, as a deceased non-party 2 (resident address 2 omitted);

2) From around 2009, the Defendant liveded with the Deceased, but at the time of the death as described in the following sub-paragraph (c), the living relationship was already liquidated.

B. On June 29, 2009, the Deceased entered into an insurance contract with D Non-Life Insurance Co., Ltd. (formerly Eastern Fire Insurance Co., Ltd.; hereinafter “d non-life insurance contract”) with “from June 29, 2009 to June 29, 2061: 10 years of age: 100 years of age: beneficiary at the time of death: Defendant, beneficiary at maturity: Non-Party 2, Non-Party 2, Non-Party 2, Non-Party 2, Non-Party 210,000, and Securities Number: (Omission)” (hereinafter “this case insurance contract”).

C. The Deceased died on October 8, 2017 while administering a chronic kidne disease during the foregoing insurance period.

[Reasons for Recognition] Facts without dispute, entry in Gap evidence 1 through 4 (including branch numbers, hereinafter the same shall apply) and the purport of the whole pleadings

2. Summary of the parties’ assertion

A. The plaintiff's assertion

1) On October 8, 2017, the Deceased died from chronic kidney disease, and the Defendant, a beneficiary of DNA non-life insurance under the instant insurance contract, acquired the insurance claim listed in the attached list (hereinafter “instant insurance claim”). However, the Defendant lived with the Deceased for about one year from 2009, and thereafter remains in South Korea after living together with the Deceased, and the Deceased expressed his/her intent to change the beneficiary on December 2, 2016, and the said declaration of intention took effect between the Deceased and the Defendant on the same day regardless of whether the Defendant consented. Furthermore, even if the Defendant needs to consent, the Defendant expressed his/her intent to change the beneficiary, and thus, should be seen as above.

2) Therefore, since the Defendant does not have any legal ground between the Plaintiff and the Plaintiff to acquire the instant insurance claim, the Defendant is obligated to return the instant insurance claim to the Plaintiff as unjust enrichment, and the Defendant is obligated to notify the assignment of the claim to the D

B. Defendant’s assertion

On or around December 2, 2016, the Deceased was discussed about the change of the beneficiary of the instant insurance contract with the Defendant and the beneficiary of the instant insurance contract, and there was no notification thereof. Thus, the Defendant, as a legitimate beneficiary of the instant insurance contract, did not have any obligation to return the claim of the instant

3. Determination

A. Acquisition of insurance claims under the insurance contract of this case

1) Article 733(1) of the Commercial Act provides that “the policyholder has the right to designate or change the beneficiary,” and the main text of Article 733(2) provides that “if the policyholder dies without exercising the right to change under paragraph (1), the right of the beneficiary becomes final and conclusive,” and Article 734(1) of the Commercial Act provides that “if the policyholder designates or changes the beneficiary after the conclusion of the contract, it shall not be asserted against the insurer unless the policyholder gives notice to the insurer.”

2) In light of the above provision, the deceased, upon entering into the instant insurance contract with D non-life insurance, designated the defendant as the beneficiary at the time of the death before the contract maturity; and the fact that the deceased did not notify the change of the beneficiary to D non-life insurance before the death of the deceased does not conflict between the parties; thus, it is reasonable to view that the defendant acquired the claim for the instant insurance in relation to D non-life insurance as the insurer upon the determination of the defendant's right as the beneficiary upon the death of the deceased.

B. Whether to notify the change of beneficiary of the instant insurance contract

1) According to Article 733(1) of the Commercial Act, a policyholder has the right to designate or change a beneficiary. As the policyholder may freely change a beneficiary without the insurer’s consent, the right to designate or change a beneficiary constitutes a right to form a beneficiary. Since a policyholder’s unilateral declaration of intent takes effect due to a change of the beneficiary, such declaration of intent does not require the insurer or the new and old beneficiary, and it is sufficient to objectively verify the intent. Furthermore, pursuant to Article 734 of the Commercial Act, if the policyholder designates or changes the beneficiary after the conclusion of the contract, it cannot be set up against the insurer unless the insurer gives notice to the insurer. This is to protect the insurer from the risk of double payment, which is to protect the insurer from the designation or change of the beneficiary, the insurer must be duly notified to the insurer in order for the policyholder to set up against the insurer. The insurer

2) We examine the above basic facts and evidence Nos. 3 and 5, together with the testimony of Non-Party 4 witness of the court of first instance. In other words, the insurance contract of this case was concluded since 2009 when the defendant and the deceased were living together with the above living relationship. As such, the deceased appears to have been designated as the beneficiary at the time of death before the expiration of the insurance contract of this case. ② The deceased appears to have received three chronic kid diseases around August 8, 2013. And even according to the defendant's assertion, it appears that the living relationship between the defendant and the beneficiary of this case was liquidated around 2014. ③ The deceased requested that the defendant visit the non-life insurance company of this case for the change of the beneficiary of this case and the non-life insurance contract of this case as the beneficiary of this case, and the change of the beneficiary of this case did not appear to have been objectively asserted as the beneficiary of this case's non-life insurance as the beneficiary of this case's non-life insurance contract of this case.

C. Sub-decision

Therefore, the Defendant gains the Plaintiff from acquiring the instant insurance claim without any legal ground, and thus, is obligated to return it to the Plaintiff. The Defendant is obligated to express his/her intention to transfer the claim to the Plaintiff with a certificate with a fixed date regarding D non-life insurance as the garnishee.

4. Conclusion

If so, the plaintiff's claim of this case shall be accepted as reasonable, and the judgment of the court of first instance which has different conclusions shall be revoked and the plaintiff's claim shall be accepted, and it is so decided as per Disposition.

[Attachment]

Judges Lee Tae-young (Presiding Judge)

(1) Nonparty 2 divorced on July 24, 1995 from Nonparty 3 who was his spouse.