State Fire and Marine Insurance Co., Ltd. (Attorney Kim Jong-sung, Counsel for the plaintiff-appellant)

Defendant 1 and one other

August 20, 2010

Jeonju District Court Decision 2009Da1077 decided Nov. 26, 2009, 2009Na3390 decided Nov. 26, 2009

1. The part of the judgment of the first instance against the plaintiff (Counterclaim defendant) shall be revoked.

2. On July 25, 2008, it is confirmed that the Defendant (Counterclaim Plaintiff) 2 did not have an obligation to pay insurance proceeds under an insurance contract as stated in the attached Form with respect to the diagnosis of a new substitute certificate received from ○○○○○ (the location of the Jeonju (hereinafter omitted) on July 25, 2008.

3. The defendant (Counterclaim plaintiff) 2's counterclaim is dismissed.

4. The total cost of the lawsuit is borne by the Defendant-Counterclaim Plaintiff.

1. Purport of claim

(a) Main claim: It is set out in paragraph (2) of this Article;

B. Counterclaim: The Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”) shall pay 616,119 won to the Defendant (Counterclaim Plaintiff; hereinafter “Defendant”) at the rate of 20% per annum from the day following the delivery of a copy of the instant counterclaim to the day of complete payment.

2. Purport of appeal

The same shall apply to the order.

A principal lawsuit and a counterclaim shall be deemed simultaneously.

1. Basic facts

A. On July 25, 2008, Defendant 1 concluded the instant insurance contract with the Plaintiff by setting the insurance period from July 25, 2008 to July 25, 2051. Of the general terms and conditions applicable to the instant insurance contract (hereinafter “instant general terms and conditions”), Defendant 1 related to the instant case are as follows.

Article 25 (Obligation to Notify before the Contract) The contractor, the insured, or their agents are aware of the facts of the questions asked in the subscription form at the time of the subscription.

Article 27 (Effect of Violation of Obligation to Notify)

1. The Company may terminate the contract regardless of the occurrence of damages, in the following cases:

1. Where the contractor, the insured, or his/her agent has violated the provisions of Article 24 by intention or gross negligence and falls under important matters;

Article 30 (Designation of Beneficiary)

A contractor may designate a beneficiary, and if no beneficiary is designated, he/she shall be a contractor in the case of Articles 19 and 20, and in the case of Article 15, he/she shall be an heir in the case of the insured, and in the case of insurance money other than the insurance money for death under Article 16 and the insurance money for death under Article 16.

B. On July 25, 2008, on the day of the conclusion of the instant insurance contract, Defendant 2 received general blood test, urine therapy test, dynamology test, and dyneology test from the former National University Hospital (hereinafter “○○○○○○○”). On the 31st day of the same month, Defendant 2, who had been transferred to the former National University Hospital on July 25, 2008, was notified of the result of the examination (the presumption of high blood pressure, high blood pressure dypology test, sypology therapy, etc.). From around August 6, 2008, Defendant 2 filed a claim against the Plaintiff for insurance payment in accordance with the instant insurance contract on December 11, 2008.

C. On the ground that Defendant 1 violated the duty of disclosure at the time of entering into the instant insurance contract, the Plaintiff rejected the payment of insurance money based on the instant insurance contract and filed the instant lawsuit with the purport of seeking confirmation of the absence of the Plaintiff’s obligation to pay the insurance money, asserting that there was no obligation to pay the insurance money to the Plaintiff pursuant to Article 27 of the instant ordinary terms and conditions

[Reasons for Recognition] Nos. 1, 2, 4, and 8 of the records, each entry of Gap's evidence, and the fact inquiry of ○○○○○○○○○○○○○ at the court of the first instance, the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff

① On June 17, 2008, prior to the conclusion of the instant insurance contract, Defendant 2 was subject to the workplace health examination on June 17, 2008, and was suspected of having a high blood pressure and a new surgery. On July 25, 200 of the same year, Defendant 2 received the diagnosis of high blood pressure, the presumption of high blood pressure, the presumption of high blood pressure, and the presumption of the parteculsis, etc. at the examination of ○○○○, and received the recommendation to undergo a close diagnosis at the previous North Korean University, but Defendant 1 did not notify the Plaintiff at the time of the conclusion of the instant insurance contract. Thus, the Plaintiff terminated the instant insurance contract on the ground that Defendant 1’s duty of disclosure was violated. ② Since the above disease was already occurred prior to the conclusion of the instant insurance contract, the instant insurance contract was null and void pursuant to Article 644 of the Commercial Act. Therefore, the Plaintiff, as the Defendants, is not obligated to pay insurance money under the instant insurance contract.

B. The Defendants

Defendant 2 was undergoing the primary workplace health examination on June 17, 2008, but the result was notified on July 30, 2008. According to this, it was merely a fact that it was necessary to conduct secondary health examination due to the Gyeongdo's increase in the clithroid value, an empty blood transfusion management, a suspicion of high blood pressure and a suspicion of an infectious disease. On July 25, 2008, Defendant 1 was subject to the inspection at ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ on the result of the inspection, but the result did not know of the final diagnosis or inspection on the disease of Defendant 2 at the time of entering into the insurance contract, and thus, it cannot be deemed that Defendant 2 violated the duty of disclosure. Since the above disease occurred after the insurance contract of this case, the Plaintiff was obligated to pay insurance money to the Defendants under the insurance contract of this case.

3. Determination

A. On the violation of duty of disclosure

6. In the event that the non-party 2 received an insurance contract with the non-party 2, the non-party 1 and the non-party 2 received an insurance contract with the non-party 1 and received an insurance contract with the non-party 8 and received an insurance contract with the non-party 2 on the condition that the non-party 2 received an insurance contract with the non-party 8 and received an insurance policy with the non-party 2 on the condition that the contract may be terminated regardless of whether the non-party 3 and 12 were caused or not, and that the non-party 2 received an insurance contract with the non-party 8 and received an insurance policy with the non-party 2 on the condition that the non-party 1 and the non-party 2 received an insurance policy with the non-party 2 on the condition that the non-party 1 and the non-party 2 received an insurance policy with the non-party 2 on the condition that the non-party 1 and the non-party 2 were found to have received an insurance policy with the non-party 2.

In light of such circumstances as the developments leading up to the conclusion of the instant insurance contract, the date of the instant insurance contract and the date of the medical examination at ○○○○, the medical examination process, and the diagnosis process, it is reasonable to deem that Defendant 1 did not notify the Plaintiff of the fact intentionally or by gross negligence (Article 638-2(1) of the Commercial Act provides that the insurer was paid the whole or part of the amount equivalent to the premium from the policyholder to the insurance contract, and that the insurer was negligent in sending the notice to the Plaintiff within 30 days without any other agreement, and that the insurer was also negligent in sending the notice to the Plaintiff within the period prescribed in paragraph (1). Paragraph (2) provides that the insurer should have prepared the insurance contract at least 80 days prior to the arrival of the insurance premium from the policyholder, and that, even if the insurer was aware of the whole or part of the amount equivalent to the insurance premium from the policyholder, the insurer would have rejected the insurance contract from 20 days to 20 days prior to the arrival of the insurance premium from the Plaintiff.

In addition, in entering into an insurance contract, when it is proved that the violation of the duty of disclosure did not affect the occurrence of the insurance accident, that is, when the insurance policyholder was not informed of the occurrence of the insurance accident or that the occurrence of the insurance accident was not due to the false notification, the insurer cannot terminate the insurance contract on the ground of the false notification pursuant to the proviso of Article 655 of the Commercial Act. However, the insurer is not able to prove the violation of the duty of disclosure and the absence of the causation (see, e.g., Supreme Court Decision 93Da52082, Feb. 25, 1994).

Ultimately, the Plaintiff may terminate the instant insurance contract on the ground of Defendant 1’s breach of duty of disclosure under the terms and conditions of the instant insurance contract. Thus, the instant insurance contract was lawfully terminated on February 19, 2009, which was served on the Defendants by the complaint of this case, including the Plaintiff’s intent to terminate the contract, around February 19, 2009 (the judgment of the Defendant is different from the instant case).

B. As to the objective determination of insurance accidents

Article 644 of the Commercial Act provides that "if an insurance accident occurred or is not likely to occur at the time of the insurance contract, the insurance contract shall be null and void. However, if both parties and the insured do not know it, this shall not apply." However, as seen above, it is difficult to recognize that the Defendants were unaware of it in this case, which was the time of the insurance contract in this case on July 25, 2008, which was the time of the insurance contract in this case, the insurance contract in this case is null and void. In addition, even if the above proviso is applied to both parties to the insurance contract and the insured, even if the above proviso is applied to both parties to the insurance contract and the insured, it is only possible to recognize the insurer's duty to pay the insurance amount, and there is no room to recognize the obligation to pay the insurance amount since the occurrence of the insurance accident before the commencement of liability stipulated in the insurance contract in this case constitutes a risk that the insurer did not take over (see Supreme Court Decision 2002Da2089, Aug. 20, 2004).

Ultimately, in light of this point, the plaintiff does not have the obligation to pay the insurance money based on the insurance contract of this case.

4. Conclusion

Therefore, the plaintiff is not obligated to pay the insurance money based on the insurance contract of this case, so long as the defendants are dissatisfied with this claim, the plaintiff's claim of the main lawsuit shall be accepted on the grounds of its reasoning, and the plaintiff's claim of the counterclaim shall be dismissed without any further review on the remaining points. Since the judgment of the court of first instance is partially unfair, the plaintiff's appeal is accepted, and the plaintiff's claim of the main lawsuit shall be accepted, and the plaintiff's claim of the main lawsuit shall be dismissed.

[Attachment]

Judges Lee Sang-ju (Presiding Judge) (Presiding Judge)