[1] The purport of Article 30 (3) of the Regulation of Standardized Contracts Act

[2] Whether Article 638-3 (2) of the Commercial Code excludes the application of Article 3 (3) of the Regulation of Standardized Contracts Act (negative)

[3] Where an insurer concludes an insurance contract in violation of the duty to clarify and explain the terms and conditions, whether the insurer can assert the contents of the insurance contract as a content of the insurance contract (negative)

[4] Whether the insurer has the duty to specify and explain the terms and conditions of the insurance, even if the terms and conditions of the insurance are generally and commonly used in the transaction, so it is sufficiently anticipated for the policyholder without any separate explanation, or it is merely a mere degree of refusing or delaying what is already stipulated by the laws

[5] The meaning of "the fact that the risk of the occurrence of an accident is significantly changed or increased" under Article 652 (1) of the Commercial Code, which provides for the duty to notify the policyholder

[6] In case where the structure of the insured automobile has been significantly changed after the conclusion of the automobile insurance, whether it is subject to the duty to notify under Article 652 (1) of the Commercial Code (affirmative)

[7] In a case where the provision of the duty of notification related to the change of the structure of a motor vehicle against the policyholder or the insurer of the insured under the terms and conditions of the insurance is merely an indefinite limit to the duty of notification under Article 652(1) of the Commercial Act, whether the insurer has a separate duty of explanation as to the terms

[8] The case holding that in a case where the insurer did not notify the insurer of the completion of the installation of the string in the insured vehicle at the time of the conclusion of the insurance contract, but did not explain the terms of the contract that the insurance solicitor should notify the above alteration after the structural change, the insurer may terminate the insurance contract on the ground of the violation of the policyholder's duty to notify under Article 652 (1) of the Commercial Act

[1] Generally, the principle that a special law takes precedence over a general law is applicable to cases where a law, which is the same form of written law, conflicts and causes conflicts among other laws, and the issue of whether a law conflicts and causes conflicts among other laws shall be determined by comprehensively examining the legislative purpose, scope of application, and matters of the law. Article 30(3) of the Regulation of Standardized Contracts Act provides that where special provisions exist in other Acts, the provision shall take precedence over the application of the provisions of the special law at the time of mutual inconsistency and promotion shall be determined by comprehensively examining the legislative purpose, scope

[2] Article 638-3 (2) of the Commercial Code provides that the insurer's right to cancel the contract shall be granted to the policyholder in relation to the effect of the insurer's breach of the duty to explain. However, in the event that the policyholder fails to exercise his right to cancel the contract, any provision exists as to whether the terms and conditions which did not fulfill his duty to explain are the contents of the contract, and there is no ground to deem that the application of the terms and conditions or the terms and conditions which are not the contents of the contract was ratified or approved in general. Thus, Article 638-3 (2) of the Commercial Code is maintained in principle even if the insurer fails to fulfill his duty to explain the terms and conditions in Article 16 of the Regulation of Standardized Contracts Act, but it is inconsistent with and inconsistent with the provisions that exceptionally become null and void in the case of a breach of the insurer's duty to explain the terms and conditions. Thus, Article 638-3 (3) of the Commercial Code does not conflict with Article 3 (3) of the Regulation of Standardized Contracts Act, and therefore, Article 638 (3) of the Commercial Code does not apply.

[3] Generally, an insurer and a person engaged in the conclusion or solicitation of an insurance contract are obligated to specify and explain the important contents of the insurance contract, such as the content of the insurance contract, the structure of the insurance premium rate, and changes in the entries in the written subscription for the insurance contract, as such, when the insurer concludes the insurance contract in violation of such duty to specify and explain the terms and conditions, the insurer may not claim the content of the terms and conditions as the content of the insurance contract.

[4] The fact that the insurer is aware of the existence of an obligation to specify and explain the insurance clauses is that there is a ground to avoid the disadvantage of the policyholder that is not predicted because the important matters of the terms and conditions are the contents of the contract while the policyholder is unaware. Thus, even if the terms and conditions of the insurance are stipulated in the terms and conditions, if there are matters that the policyholder could have sufficiently predicted without any separate explanation because they are common and common in the transaction, or if there are matters that are merely about the degree that the policyholder would repurchase or neglect those matters already stipulated in the Acts and subordinate statutes

[5] Article 652 (1) of the Commercial Code provides that "the risk of an accident" subject to the duty to notify the policyholder or the insured is significantly changed or increased" means the fact that the insurer did not enter into an insurance contract, or at least did not take over the insurance premium, if the risk of the change or increase exists at the time of entering into an insurance contract.

[6] In case of automobile insurance, not only the purpose and type of insured motor vehicle but also the structure of the insured motor vehicle and the insurance premium rate vary. Thus, in case where the structure of the insured motor vehicle has been significantly changed after the conclusion of the insurance contract, the insurer is subject to the duty to notify under Article 652 of the Commercial Act because it falls under the fact that the insurer did not enter into the insurance contract or that at least did not take over the insurance premium, if the policyholder or the insured neglect to do so, the insurer may terminate the automobile insurance contract under the Commercial Act immediately.

[7] In a case where there is a change in material matters such as the structural change of the insured automobile after concluding an insurance contract under the terms and conditions applicable to the comprehensive automobile insurance contract, or where there is a clear increase in the risk or the difference in the premium to be applied, even if the policyholder or the insured provides for the insurer with the duty to notify it without delay, it cannot be deemed that the insurer has a separate duty to explain the duty to notify already determined under Article 652 of the Commercial Act because the obligation to notify to the insurer falls under the provisions that specifically

[8] The case holding that in a case where the insurance solicitor notified the insurance solicitor that he would install a string truck at the time of the conclusion of the insurance contract, but did not notify the insurer of the completion of the installation of the string truck, and the insurance solicitor did not inform the insurer of the fact in writing after the structural change to the insurance contractor at the time of the conclusion of the insurance contract, and did not properly explain the terms of the insurance clause that the insurance premium should be additionally paid with the approval of the insurer on the insurance policy, if the insurance solicitor merely notifies the insurance solicitor of the fact that he would install the string on the insurance policy, the insurance solicitor does not have the right to independently conclude the insurance contract on behalf of the insurer, and in light of the fact that the insurance solicitor does not have the right to receive the notice or notification, it cannot be deemed that the insurance solicitor has fulfilled the duty to notify the insurance contractor under Article 652 of the Commercial Act after the conclusion of the insurance contract, so long as the insurance contractor did not notify the insurer of the completion of the installation of the string, this can be terminated the insurance contract regardless of whether the policyholder's duty to notify.

[1] Article 30 (3) of the Regulation of Standardized Contracts Act / [2] Article 638-3 (2) of the Commercial Act, Articles 3, 16, and 30 (3) of the Regulation of Standardized Contracts Act / [3] Article 638-3 (1) of the Commercial Act, Article 3 of the Regulation of Standardized Contracts Act / [4] Article 638-3 (1) of the Commercial Act, Article 3 of the Regulation of Standardized Contracts Act / [5] Article 652 (1) of the Regulation of Standardized Contracts Act / [6] Article 652 (1) of the Commercial Act / [7] Articles 638-3 (1) and 652 (1) of the Commercial Act, Article 3 of the Regulation of Standardized Contracts Act / [8] Articles 638-3 (1) and 652 (1) of the Commercial Act, Article

[1] Supreme Court Decision 88Nu6856 delivered on September 12, 1989 (Gong1989, 1479) / [3] Supreme Court Decision 91Da31883 delivered on March 10, 1992 (Gong1992, 1284), Supreme Court Decision 95Da53546 delivered on March 8, 1996 (Gong1996, 120), Supreme Court Decision 95Da45873 delivered on September 9, 197 (Gong1997Ha, 3029, 3021 delivered on September 26, 1997), Supreme Court Decision 97Da49794 delivered on September 26, 197 (Gong1997Ha, 3029) 97Da984989 delivered on April 10, 198 (Gong1997Ha, 3297, 1997)

Tran Fire Marine Insurance Co., Ltd. (Attorney Lee Jong-sung, Counsel for the plaintiff-appellant)

[Defendant-Appellant] Defendant 1 and 3 others (Attorney Jung Jung-chul, Counsel for defendant-appellant)

Gwangju High Court Decision 97Na7942 delivered on June 12, 1998

The judgment below is reversed. The case is remanded to the Gwangju High Court.

The grounds of appeal are examined.

1. According to the reasoning of the lower judgment, the facts cited by the lower court as follows are acknowledged by comprehensively taking account of the evidence adopted in its judgment or by the parties having no dispute between them.

On November 7, 1996, the defendant limited liability company's identity industry (hereinafter referred to as "the defendant company") purchased (vehicle registration number 1 omitted) 5t truck (hereinafter referred to as "the truck of this case") in order to use it for the transportation of waterway pipes for the creaming business, and requested the manufacturer to load the truck of this case and remodel the truck of this case to remodel it on August of the same month, and entered into a comprehensive automobile insurance contract (hereinafter referred to as "the insurance contract of this case") with the plaintiff company and the insured through Nonparty 2, an insurance solicitor of the plaintiff company, through the defendant company and the defendant company from November 9, 1996 to November 8, 197.

Before entering into the instant insurance contract, Nonparty 1, the executive director of the Defendant Company, knew Nonparty 2, who had been involved in entering into the instant insurance contract on three different trucks owned by the Defendant Company, that he would have installed a string on the instant truck. In addition, Nonparty 3, who was in charge of entering into the instant insurance contract as an employee of the Defendant Company, also informed Nonparty 2 at the time of entering into the instant insurance contract. However, the insurance subscription did not indicate the instant truck on the column for a string engine, and only paid insurance premium according to the basic insurance premium rate without indicating it. Nonparty 2 and the Plaintiff Company’s insurance office, at the time, concluded the instant insurance contract by applying the basic insurance premium rate on the ground that the instant truck was not written on the vehicle registration certificate because the string on the instant truck was not completely installed.

However, according to the automobile insurance practice guidelines of the plaintiff company, 120% of the basic insurance premium rate is applied to an automobile with a flag flag, and when the policyholder, the insured, or his agent, at the time of concluding the insurance contract, either intentionally or by gross negligence, fails to inform the plaintiff company of the material facts in its written subscription or falsely notifies the plaintiff company of the fact (Article 57 (1) 1), the plaintiff company may terminate the insurance contract (Article 57 (1)). If, after entering into the insurance contract, there is a change in the purpose, type, structure, or description of the insured automobile, or any change in the material facts in its written questions made by the plaintiff company, or if there is a difference in the insurance premium to be applied, the policyholder or the insured shall, without delay, notify the plaintiff company in writing and obtain approval from the plaintiff company (Article 58 (1) 2 and 4). However, at the time of entering into the insurance contract, the plaintiff company or the non-party 2 did not properly inform the plaintiff company of the contents of the insurance premium to be paid in writing.

After that, the defendant company reported to the competent authority as of November 22, 1996 and stated the change in the structure of the register of automobiles, but did not notify the plaintiff company of the change in the structure.

In that situation, on March 25, 1997, Non-party 3, who was driven by Non-party 4 (vehicle registration number 2 omitted) at the top of the Gonam-gun, Jindo-gun, Jindo-gun, Gonam-gun, Gonam-gun, for the work of loading and unloading the waterway on the 11st truck (vehicle registration number 2 omitted) which Non-party 4 driven by Non-party 4 at the seat of the Gyeongnam-gun, Jindo-gun, Jindo-gun, Jindo-gun, and caused Non-party 4 to die with the electric shock by exposing the b5,00V high-tension line installed near the Do.

On April 15, 1997, the Plaintiff Company notified the Defendant Company that the instant insurance contract will be terminated since the Defendant Company had installed a cick on the instant truck but did not inform the Plaintiff of the change in its structure.

The court below, based on the above facts, did not notify the plaintiff company of the fact that the defendant company changed the structure of the truck wharf of this case after the conclusion of the insurance contract of this case, but this did not hear sufficient explanation from the plaintiff company or its insurance solicitor about the insurance terms and conditions. Thus, the plaintiff company cannot claim the insurance terms and conditions of this case as the content of the insurance contract of this case, and therefore, the termination of the insurance contract of this case of the plaintiff company on the ground of the defendant company's breach of duty of disclosure is illegal and null and void. Accordingly, all of the claims of this case filed by the plaintiff company against the defendants who are the defendant company and the non-party 4's bereaved family members are dismissed.

2. Regarding ground of appeal No. 1

Article 3(3) of the Act on the Regulation of Terms and Conditions (hereinafter referred to as "the Act on the Regulation of Terms and Conditions") provides that if the insurer violates the obligation to specify and explain the terms and conditions, such terms and conditions shall not be asserted as the content of the contract, and Article 16 of the Act provides that even if the terms and conditions are not the content of the contract, in principle, the validity of the contract shall continue to exist in accordance with other terms and conditions, but if it is impossible to achieve the purpose of the contract or is disadvantageous to one of the parties, the contract concerned shall be null and void. Article 30(3) of the Act provides that if there are special provisions in other Acts concerning the terms and conditions in the particular business area, such provisions shall apply first. Article 638-3 of the Commercial Act provides that the insurer shall issue and explain the insurance terms and conditions under paragraph (1)

In general, the principle that a special law takes precedence over a general law is applicable to cases where a law, which is a written law of the same form, conflicts and conflicts with each other, and the issue of whether a law conflicts and conflicts with each other shall be determined by comprehensively examining the legislative purpose, scope of application, and provisions of the law (see, e.g., Supreme Court Decisions 88Nu6856, Sept. 12, 1989; 96Da38995, Jul. 22, 1997). Article 30(3) of the Act on the Regulation of Terms and Conditions provides that where special provisions exist in other Acts, the provision shall take precedence over the application of the provisions in the above case of a special law.

However, Article 638-3 (2) of the Commercial Act provides that the effect of the insurer's breach of the insurer's duty to explain shall be granted to the policyholder in relation to the validity of the insurance contract. However, in the event that the policyholder fails to exercise his right to cancel the contract, there is no provision as to whether the terms and conditions which failed to fulfill his duty to explain are the contents of the contract or not, and there is no ground to deem that the application of the terms and conditions which are not the contents of the contract or the terms and conditions clause was ratified or approved in general. Thus, Article 638-3 (2) of the Commercial Act provides that even if the insurer fails to fulfill his duty to explain the terms and conditions in Article 16 of the Act on the Regulation of Terms and Conditions, in principle, the validity of the contract shall be maintained, but if there is a reason to believe that there is any inconsistency and promotion between Article 3 (3) of the Act on the Regulation of Terms and Conditions which provides that the whole terms and conditions can not be asserted as the contents of the contract.

Therefore, Article 638-3 (2) of the Commercial Act cannot be deemed as a special provision excluding its application in relation to Article 3 (3) of the Act on the Regulation of Terms and Conditions, so even if the insurance clause is subject to Article 638-3 (2) of the Commercial Act, Article 3 (3) of the Act on the Regulation of Terms and Conditions shall also be applicable. In the same purport, the decision of the court below that the insurance clause in this case can be subject to Article 3 (3) of the Act on the Regulation of Terms and Conditions is just, and there is no error of law by misapprehending the interpretation of Article 638-3 (2) of the Commercial Act on the basis of the interpretation of Article 638-

3. Regarding ground of appeal No. 2

In general, when concluding an insurance contract, the insurer and the persons engaged in the conclusion or solicitation of the insurance contract are obliged to clarify and explain the important contents of the insurance contract, such as the content of the insurance product, the insurance premium rate system, changes in the entries in the insurance subscription form, etc. which are contained in the insurance contract, so if the insurer concludes the insurance contract in violation of such duty to clarify and explain the terms and conditions, the insurer may not claim the contents of the terms and conditions as the content of the insurance contract (see, e.g., Supreme Court Decisions 91Da31883, Mar. 10, 1992; 95Da53546, Mar. 8, 1996; 95Da45873, Sept. 9, 197). Thus, it is acknowledged that the insurer’s clearly and duty to explain and explain such terms and conditions are to avoid disadvantage that the policyholder would not have any knowledge of important matters of the terms and conditions, and thus, it is not possible for the policyholder to explain and explain such matters sufficiently or sufficiently.

However, Article 652(1) of the Commercial Act provides that if the policyholder or the insured becomes aware of the fact that the risk of an accident has been significantly changed or increased during the insurance period, without delay, the insurer may cancel the insurance contract within one month from the date when it becomes aware of such fact. "The fact that the risk of an accident, which is the object of the duty to notify, has been significantly changed or increased" means the fact that the insurer did not conclude the insurance contract or that at least the insurance premium would not have taken over the insurance premium (see Supreme Court Decision 95Da25268 delivered on September 5, 197). In automobile insurance, the insurer has determined otherwise as to whether to take over the insurance premium or not according to its structure as well as the type and structure of the insured automobile, so if the structure of the insured automobile has been significantly changed after the conclusion of the insurance contract, the insurer would not conclude the insurance contract or at least have not taken over the insurance premium, and thus, the insurer would not be subject to the duty to notify under Article 652 of the Commercial Act.

Therefore, as acknowledged by the court below, when there is a change in important matters, such as structural change, etc. of insured motor vehicle after concluding an insurance contract under the insurance contract applicable to the insurance contract of this case, or when there is a clear increase in risk or the difference in the premium to be applied, the policyholder or the insured shall, without delay, notify the Plaintiff company of such change, it cannot be deemed that Article 652 of the Commercial Act provides that the insurer or the insured shall be subject to the duty of notice as stipulated in the insurance contract of this case because the obligation of notice already set forth in the

Therefore, as acknowledged by the court below, the non-party 1 or the non-party 3, who is a regular manager of the defendant company, was merely an insurance solicitor of the plaintiff company, notified the non-party 2, who is an insurance solicitor of the plaintiff company, that he would install the cream on his truck of this case, generally, the insurance solicitor is not entitled to independently conclude an insurance contract on behalf of the insurer, and there is no right to receive the notification or notification (see, e.g., Supreme Court Decisions 79Da1234, Oct. 30, 197; 97Da9109, May 16, 197). Thus, in light of the fact that the non-party 1 or the non-party 3, who is in charge of the actual insurance contract, did not perform the duty to notify the alteration of the structure of the truck of this case. Thus, as acknowledged by the court below, unless the defendant company did not appear to be an error of notification (this is an error of notification).

The court below held that the insurance contract of this case cannot be terminated on the ground of the defendant company's failure to perform its duty to notify the fact that the policyholder's duty to notify the change of the structure of the insured motor vehicle is stipulated in the insurance terms and conditions. The court below erred in the misapprehension of legal principles as to the subject of the duty to explain the terms and conditions, which affected the conclusion of the judgment. The ground of appeal pointing this out has merit.

3. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed pursuant to the second ground of appeal, and the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices.

Justices Jeong Jong-ho (Presiding Justice)