Plaintiff (Law Firm Chungcheong, Attorneys Choi Jong-young et al., Counsel for the plaintiff-appellant)

Republic of Korea (Attorney Appointment)

may 23, 2007

Seoul Central District Court Decision 2004Gadan139808 Delivered on May 16, 2006

1. The plaintiff's appeal is dismissed.

2. Upon the plaintiff's preliminary claim added at the trial, the defendant shall pay to the plaintiff 30 million won with 5% interest per annum from May 26, 2004 to April 6, 2007, and 20% interest per annum from the next day to the date of full payment.

3. The plaintiff's remaining conjunctive claims are dismissed.

4. The total costs of the lawsuit shall be five minutes, and two of them shall be borne by the plaintiff, and the remainder by the defendant.

5. Paragraph 2 can be provisionally executed.

Main and Preliminary, the defendant shall pay to the plaintiff 50 million won and the amount calculated at the rate of 20% per annum from the next day of the delivery of a copy of the complaint of this case to the day of full payment (the plaintiff added the conjunctive claim at the trial and reduced the damages for delay).

The judgment of the first instance shall be revoked. The defendant shall pay to the plaintiff 50 million won with 20% interest per annum from the day following the delivery of a copy of the complaint of this case to the day of full payment.

1. Facts of recognition;

(a) Conclusion of insurance contracts;

The defendant (the Minister of Information and Communication), on July 2, 2002, entered into an insurance contract with the plaintiff, who is a father of the non-party 1, and received insurance premiums as follows:

(a) Insurance types: Insurance in the depth of the disaster;

(2) The contract date: July 2, 2002

(3) Insurance period: From July 2, 2002 to July 2, 2022

(d) Insurance premium: 6,500 won per month;

(5) Insurance proceeds: 50,000 won per holiday or accident death;

(6) Main Insured: Nonparty 1

(7) Beneficiary: Plaintiff upon death

B. Occurrence of the instant accident

(1) 소외 1은 일요일인 2003. 8. 31. 술에 만취되어 있음이 같은 마을 주민 소외 3에 의하여 최종 목격된 후, 2003. 9. 1. 10:04경 김제시 백구면 (상세지번 생략)에 있는 자신의 집 토방 수돗가에서 높이 30cm, 물깊이 10cm의 큰대야에 머리를 처박고 사망한 시체로 발견되었다. 발견 당시 소외 1은 위 집 화장실 쪽을 향하여 위 큰대야에 얼굴부위가 잠겨 있었는데, 물에 불은 그녀의 얼굴은 군데군데 파란색 또는 보라색으로 변해 있었고, 그 인중과 미간 사이는 움푹 패어 있었으며, 발 부위에 바닥에 긁힌 찰과상이 있을 뿐 달리 외부의 상처흔은 전혀 없었다.

(2) 당초 경찰은 현장실황조사 결과를 기초로 소외 1이 2003. 8. 31. 19:00경 화장실에 가기 위하여 20cm 높이의 토방을 지나다 발을 헛딛고 실족되어 수돗가 옆에 있던 위 큰대야에 얼굴을 처박아 의식을 잃고 숨을 쉬지 못하였다고 추정하고, 기도폐쇄로 인한 익사로 판단하였고, 검찰 또한 마찬가지로 판단하여 사체검시 종료 후 유족에게 인계하도록 지휘하였다.

(3) In addition, on September 1, 2003, Nonparty 4, who initially conducted the death of Nonparty 1, entered the body of Nonparty 1 in the body of the body of Nonparty 1, as it was presumed that Nonparty 1 obtained coination in the state of loss of self-help due to the previous death, such as brain stroke, or stroke, etc. similar to the brain stroke, but it was presumed that Nonparty 1 was deceased due to the occurrence of the stroke, the body of Nonparty 4 stated the body of Nonparty 1 in the body of the body of Nonparty 1 as brain stroke, a senior stroke, and entered it again on September 16, 2003 on the body of Nonparty 1.

[Ground of Recognition] Facts without dispute, Gap evidence 1 to 3, Eul evidence 1 to 4 (including each number), Gap evidence 5 to 7, 9, Eul evidence 14 (including each number), the purpose of the whole pleadings and arguments

2. Judgment on the main claim

A. Whether the instant accident constitutes an insurance accident

(1) The plaintiff asserts that since the non-party 1 died on a holiday due to the closure of a flag after the death on the holiday, this constitutes an accident, which is an insurance accident, as stipulated in the above insurance contract, and that the defendant sought payment of the premium for a holiday accident under the above insurance contract against the defendant. Accordingly, the defendant asserts that the above death was caused by a disease, such as blood pressure, etc., or physical physical factors, and that it does not constitute a death due to a disaster, and that it does not constitute a death.

(2) According to the above evidence Nos. 1 and the entire purport of the arguments, the insurance terms and conditions, which included in the above insurance contract at the time of entering into the above insurance contract, stipulate “accidents involving holiday accident” as “accidents in accordance with the following classification table as well as 32 types of non-understandings.” However, if a person who has a disease or physical nature factor suffers from or worsens from minor external factors, such minor external factors do not constitute contingent external accidents, and the fact that “accidents caused by disease” and/or guards caused by disease are excluded from the “accidents caused by incidental water.”

(3) Comprehensively taking account of the facts found in Section 1. B. The defendant's assertion that Nonparty 1, who had been well in charge of blood pressure and urology due to pharmacologic treatment, did not have any duty to recognize the above facts, is only 20cc high, when he was drunk on the day of his death, and her face was lost in the above large field, and it can be confirmed that he was able to know and she did not know about the above fact due to the above big urgical closure. The defendant's statement Nos. 4, 25, 6, 7, 9, 10, 13 was against the above fact-finding, and it cannot be readily concluded that there was no other duty to examine the body of the non-party 1, who did not have any other duty to discover that the body of the non-party 1 was dead after the death of the non-party 1, and that there was no other reason to believe that the death of the non-party 1 might have been caused after the death of the non-party 1.

(b) the existence of written consent of the insured;

The defendant asserts that the above insurance contract between the plaintiff and the insured is null and void without the written consent of the non-party 1 who is the insured.

In full view of the purport of the argument in the statement No. 12 of the above insurance contract, the plaintiff can only recognize the fact that at the time of entering into the above insurance contract on behalf of the non-party 1, and there is no evidence to acknowledge that the non-party 1, the main insured, gave written consent to the above insurance contract individually. Thus, the above insurance contract is null and void without the written consent of the non-party 1, the main insured. Thus, the defendant's argument is justified (the plaintiff argues that he was delegated with the authority to enter into the above insurance contract by the non-party 1 after completing his signature and seal, but there is no evidence to acknowledge it).

3. Determination on the conjunctive claim

(a) Occurrence of liability for damages;

With respect to an insurance contract which covers the death of another person as an insured accident, the insurance contract becomes null and void because it violates Article 731(1) of the Commercial Act without obtaining the written consent of the other person who is the insured at the time of conclusion of the insurance contract. Thus, when an insurance solicitor who is an insurance expert concludes an insurance contract which covers the death of another person as an insured accident, he/she has the duty of care to explain in detail and in detail the fact that such insurance contract becomes null and void without obtaining the consent of the other person who is the insured, to the policyholder and to take measures to enable the policyholder to obtain the written consent of the insured so that the policyholder to enter into the effective insurance contract. If the policyholder becomes unable to receive the insurance money due to such breach of the duty of care as above, the insurance company has the obligation to compensate the policyholder for the loss (see, e.g., Supreme Court Decisions 2003Da24451, Jul. 22,

However, in full view of the statements in Gap evidence Nos. 10 and Eul evidence Nos. 12 and the purport of the argument as a whole, it can be acknowledged that Non-party 2, an insurance solicitor of the defendant, recommended the plaintiff to enter into each of the above insurance contracts as the insured by Non-party 1, who is an insurance solicitor of the defendant as the insured by Non-party 1, without explaining the fact that each of the above insurance contracts is null and void if the non-party 1's written consent is not obtained, and that the plaintiff was unable to receive the insurance proceeds because the above insurance contract becomes null and void on the ground that the insured's written consent was not obtained.

In light of the above circumstances, the plaintiff could not receive the insurance money due to the non-party 2's violation of the duty of care, which is an insurance solicitor, the defendant is liable to compensate the plaintiff as the insurance contractor for the damages incurred by the non-party 2 while soliciting the above insurance.

B. Limitation on liability

On the other hand, in full view of the purport of each of the above evidence, it is reasonable to 40% of the Plaintiff’s negligence ratio in light of the following: (a) the Plaintiff was aware of the terms and conditions for the validity of the above insurance contract; and (b) was negligent in failing to obtain written consent from Nonparty 1; and (c) the conclusion of the above insurance contract.

D. Scope of damages

If a policyholder is unable to receive the insurance money due to a violation of the duty of care of an insurance solicitor, and an insurance company is liable for the damages to a policyholder, the scope of the damages is the amount equivalent to the insurance money payable on the date of payment

In the event that there is no dispute between the parties as to the fact that the insurance money under the above insurance contract is 50 million won, and the plaintiff's negligence is considered, the defendant is liable to compensate the plaintiff for the damages for delay from the day following the delivery of a copy of the complaint of this case pursuant to the plaintiff's claim against the plaintiff (=50 million won x 0.6).

4. Conclusion

Therefore, the plaintiff's primary claim shall be dismissed as it is without merit. The judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as it is, and the defendant is subject to the conjunctive claim added in the court of first instance, and the defendant is obligated to dispute about the existence and scope of the defendant's primary claim from May 26, 2004 to April 6, 2007, which is the date after the delivery of a copy of the complaint of this case sought by the plaintiff from May 26, 2004 to the day after the payment date of insurance money, and to pay damages for delay calculated at the rate of 20% per annum as stipulated in the Civil Act and 5% per annum as stipulated in the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the next day to the day after the payment is made. Thus, the plaintiff's preliminary claim is justified within the scope of the above recognition, and the remaining claims are dismissed as it is so decided as per Disposition.

Judges Han-ho (Presiding Judge)