[1] The point of time to determine whether the requirements for the establishment of an insurance contract and the duty to notify the "material facts" under Article 651 of the Commercial Act were violated (=the time when the insurance contract is concluded)

[2] In a case where Gap applied for an insurance contract with Eul corporation as Eul's insured Byung, and sent it to Eul corporation with the fact that Byung was diagnosed by blood pressure or was administered, etc. within the last five years, the fact that Byung was diagnosed by high blood pressure on the day of the subscription, and whether Gap violated the duty of disclosure on important matters under Article 651 of the Commercial Act, the case holding that Eul's insurance contract was lawfully terminated on the ground that it violated the duty of disclosure, and therefore, there was no obligation of payment of insurance money of Eul corporation

[1] In principle, an insurance contract is established upon the consent of the insurer with respect to the subscription of the policyholder. If the insurer receives from the policyholder the whole or a part of the amount equivalent to the premium, it shall give notice to the other party within 30 days unless otherwise agreed, and if the insurer neglects to give notice of the abortion within the period, it shall be deemed that it has given consent (Article 638-2(1) and (2) of the Commercial Act). Meanwhile, if the policyholder or the insured has "material material material material material material material material material material material material material material material material material material material material material material material material material material material material material material material material material material material material material material material material material material material material material material material material material material material material material.

[2] The case holding that in a case where Gap applied for an insurance contract with Eul corporation as Eul's insured Byung and sent the insurance contract to Eul corporation as Eul, stating that Byung was diagnosed or administered through a medical examination or examination by high blood pressure, etc. during the last five years, and that Byung was diagnosed with intention on the day of subscription and that Gap violated the duty of disclosure of important matters under Article 651 of the Commercial Act, the case holding that Eul did not have a duty of disclosure, such as intentionally or by gross negligence, even though Byung was diagnosed with high blood pressure before the insurance contract was concluded after the insurance contract was concluded, Eul violated the duty of disclosure, such as making the questionnaire of the written subscription and sending it to Eul corporation, and thus, Eul did not have any duty of disclosure, and thus, Eul's insurance money payment obligation based on the insurance contract was terminated.

[1] Articles 638-2 (1) and (2), and 651 of the Commercial Act / [2] Articles 638-2 (1) and (2), and 651 of the Commercial Act

State Fire and Marine Insurance Co., Ltd. (former trade name: Interest & Power Fire and Marine Insurance Co., Ltd.) (Attorney Kim Jong-sung, Counsel for the plaintiff-appellant)

Defendant 1 and one other

Gwangju High Court Decision 2009Na3383, 3390 decided September 3, 2010

All appeals are dismissed. The costs of appeal are assessed against the Defendant (Counterclaim). The case number “209Gahap1077, 2009Na3390 (Counterclaim)” in the indication of the judgment of the court of first instance shall be corrected to “2009Gahap1077, 2009Gahap6386 (Counterclaim).”

The grounds of appeal are examined.

1. As to termination of an insurance contract due to a violation of duty of disclosure

In principle, an insurance contract shall be concluded upon the consent of the insurer with respect to the subscription of the policyholder, and if the insurer has received from the policyholder the whole or a part of the amount equivalent to the premium, it shall give notice to the other party within 30 days unless otherwise agreed, and if the insurer neglects to give notice of the refusal within the above period, it shall be deemed that it has given consent (Article 638-2(1) and (2) of the Commercial Act). Meanwhile, if the policyholder or the insured has "material material material material material material material material material material material material material material material material material material material material material material material material material material material material material material material material material material material material material material material material material material material material material material material material material material material."

According to the facts established by the court below, on July 25, 2008, Defendant 2 (Counterclaim Plaintiff; hereinafter “Defendant 2”). Defendant 1, who was working at the workplace, concluded an insurance contract with Defendant 2 for medical treatment before receiving a medical examination. Defendant 2 provided consultation with the Nonparty, who was an insurance solicitor of the Plaintiff (hereinafter “Plaintiff”) on July 25, 2008, with the result of this case’s medical examination by stating the fact that Defendant 2 received an insurance premium at KRW 13:39 on July 25, 2008. At that time, Defendant 1 received an insurance contract with Defendant 2, which was presumed to have been subject to the duty of disclosure, and then received an insurance premium at KRW 5,00,00,00 from Defendant 2, and then received an insurance contract with Defendant 2, who was notified of the result of the examination by means of blood pressure or other medical pressure, or received an insurance contract with Defendant 2, who was not subject to the Nonparty’s new medical examination by mail.

In light of the above facts in light of the legal principles as seen earlier, it is reasonable to view that Defendant 1 violated the duty of disclosure by stating that Defendant 2, the insured, was diagnosed as high blood pressure on August 7, 2008, despite having received the diagnosis that it was conducted on August 7, 2008, by intention, after having subscribed for the instant insurance contract after having made an offer of the instant insurance contract, Defendant 1 violated the duty of disclosure by intentionally or by gross negligence, and that the instant insurance contract was lawfully terminated by the Plaintiff’s declaration of termination on the ground that there was no obligation of the Plaintiff to pay insurance money based on the instant insurance contract.

The judgment of the court below is just in its conclusion that the insurance contract of this case was terminated on the ground of Defendant 1’s breach of duty of disclosure, and there is no error in the misapprehension of legal principles as to the termination of the insurance contract due to the violation of duty of disclosure as otherwise alleged in the ground of appeal

2. As to the remaining grounds of appeal

As seen earlier, the lower court’s conclusion that there is no obligation to pay the Plaintiff’s insurance money based on the instant insurance contract is justifiable. As long as the Defendants’ remaining grounds of appeal are erroneous in the judgment of the lower court, even if there were errors as alleged in the judgment by the lower court, it cannot affect the outcome of the lower judgment, and therefore,

3. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. The case number "209Gahap1077, 2009Na3390 (Counterclaim)" in the indication of the judgment of the court of first instance is obvious that it is a clerical error in the "2009Gahap1077, 2009Gahap6386 (Counterclaim)". It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Young-chul (Presiding Justice)