2010Na44271 Invalidity of insurance and termination of insurance

early 00 (00000 - 000000)

00 Si 000 Dong 0000 0000 000 Dong 000

Attorney Jeon-chul et al., Counsel for the plaintiff-appellant

Attorney Lee Dong-soo et al.

0 Life insurance company

Seoul 00 Gu 000 Ghana

New representative director 00

Attorney Lee Young-hoon, Counsel for the defendant-appellant

Suwon District Court Decision 2009Gahap3203 Decided April 14, 2010

April 21, 201

May 26, 2011

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance shall be revoked. The defendant shall be 14,964,00 won and the complaint of this case against the plaintiff.

The defendant shall pay 20% interest per annum from the day after the delivery of a copy to the day of full payment.

on October 7, 2008, the contractor and the Plaintiff’s certificate number 00000000, the Plaintiff

It confirms that the termination of a dividend 000CI insurance contract is void.

1. Basic facts

A. Details of the Plaintiff’s insurance prior to medical treatment

The plaintiff was diagnosed as the Gap upper line's functional niversity and her medication was recovered on March 2006. However, on September 29, 2007, the plaintiff was diagnosed as the Gap upper line's functional niverstytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytytymumumumumumumumumum.

B. On December 21, 2007, the Plaintiff entered into a contract with the Defendant for non-distribution 000CI insurance (hereinafter “instant insurance”) with the following terms and conditions as the insured (a summary of the coverage).

(B) On the other hand, Article 28 of the insurance clauses of this case, which is incorporated into the contents of the contract of this case as part of the contract of this case, may terminate the contract of this case or restrict the guarantee in accordance with the method separately determined by the defendant at the time of false description as to the matters asked to question before the contract of this case (paragraph (1). However, if the defendant fails to prove that the fact of violation of the duty to notify prior to the contract of this case had influenced the occurrence of the cause for payment of insurance money, the pertinent insurance money arising before the termination or guarantee of the contract is restricted (paragraph (5). (2) When entering into the insurance contract of this case and entering into the contract of this case, the plaintiff stated that "not all of the following items in the questionnaire presented by the

○ Within the last five years: ① Athythy disease, internal medicine disease, ② earth and stove, stove, and fire extinguishing machinery disease (such as hepatitis, stove, stove, stove, stove, stove, stove, stove, stove, and stove, etc.) which was diagnosed by a doctor through a diagnosis and examination; or whether there was a stove, medication, hospitalization, surgery, and close inspection; whether the drugs have been recovered for at least 30 consecutive days during the last five years (except for stoves), whether the toxic drugs have been inhaled, stoved, and stoved, and stove them? (" continually" means the actual number of days of medication until the date of completion of treatment for the same reason?)

○ It will take into account future medical consultation, inspection, investigation, and treatment? The occurrence of the instant insurance accident?

The plaintiff was diagnosed at a university of 0000 on September 20, 2008 as the "hummatic leukosis disease" and was hospitalized at a center of 000 on September 3, 2008 for 47 days from September 3, 2008 to October 22, 2008 and was hospitalized for 158 days in total on 4 occasions from March 21, 2009, and was hospitalized for 158 days around February 19, 2009.

D. The defendant's termination of the insurance contract of this case and payment of insurance money

On the other hand, on October 7, 2008, the Defendant terminated the instant insurance contract on the ground that the Plaintiff did not notify the Plaintiff of the fact that the Plaintiff had received diagnosis of the symptoms of Gap upper line skills at the time of entering into the instant insurance contract. However, the Defendant paid the instant insurance contract for 24 million won and 47 days from September 3, 2008 to October 22, 2008 of the instant insurance contract, which occurred before the termination under Article 28(5) of the instant insurance contract, and for 47 days from September 3, 2008 to October 22, 2008.

[Ground of recognition] Unsatisfy, Gap evidence Nos. 1 through 7, Eul evidence Nos. 1 through 5 (including each number), the purport of the whole pleadings

2. The assertion and judgment

A. The plaintiff's assertion

The plaintiff argues that the contract of this case was not valid since the plaintiff's symptoms of Gap's existing disease, such as Gap's symptoms, are extremely insignificant. Thus, it cannot be deemed that the plaintiff was intentional or gross negligence on account of failure to notify the defendant at the time of conclusion of the contract of this case. In addition, as long as the causal relationship between Gap's function lowering and Gap's acute stimulative disease is not acknowledged, the insurance contract cannot be terminated on the ground of the above violation of the duty of disclosure after the occurrence of the insurance accident pursuant to the purport of Article 655 of the Commercial Act, and the contract of this case was not explained to the purport that the plaintiff may terminate the insurance contract due to the violation of the duty of disclosure from the insurance solicitor at the time of conclusion of the insurance contract of this case. The plaintiff asserted that the termination of the insurance contract of this case on October 7, 2008 is invalid, and that the contract of this case was not valid after the termination of the contract of this case, the insurance money related to hospitalization and operation of the above disease continued after the termination of the insurance contract of this case.

B. Determination

(1) Whether the Plaintiff’s intentional or gross negligence is recognized

As seen earlier, the Plaintiff continued to receive medical treatment for several years due to Gap's injury in skills, etc., and took the treatment chemicals. In addition, the conclusion of the insurance contract of this case and the conclusion of the contract of this case on December 7, 2007, 2007, she would undergo a future close inspection due to symptoms, such as chest fry, etc., and entered into the insurance contract of this case on December 21, 2007, 2007, which is the scheduled date of the inspection, as long as the Plaintiff did not notify the above medical treatment and medication experience and the scheduled fact of future inspection, it shall be deemed that the Plaintiff was intentional or gross negligence for the violation of the duty of disclosure.

(2) Whether the termination of the instant insurance contract is effective

The Plaintiff asserts that, insofar as the Plaintiff’s breach of duty of disclosure and the causal relationship between the instant insurance accident are not recognized, the insurance contract may not be terminated on the ground of breach of duty of disclosure pursuant to the proviso of Article 655

In light of the following facts, when the policyholder or the insured has failed to notify material facts intentionally or by gross negligence at the time of the insurance contract, or has made a false notification, the insurer may terminate the contract within one month from the date of becoming aware of such fact and within three years from the date of the conclusion of the contract. Article 655 of the Commercial Act provides, “In the event the insurer has terminated the contract in accordance with the provisions of Articles 650, 651, 652 and 653 even after the occurrence of the insured events, the insurer shall not be liable for paying the insured amount and may demand the return of the insured amount already paid. However, this provision shall not apply if it is proved that the occurrence of the insured events was not affected by the breach of the duty of disclosure or by a substantial alteration or increase of risks.”

Article 651 of the Commercial Act provides for the termination of an insurance contract due to breach of duty of disclosure and the occurrence of an insurance accident, and Article 655 of the Commercial Act provides for the claim for insurance amount when the contract has been terminated due to breach of duty of disclosure, etc. As such, the main text of the proviso as well as the provision on the existence of the claim for insurance amount is reasonable. If the policyholder or the insured intentionally or by gross negligence at the time of the insurance contract, the requirement for breach of duty of disclosure is satisfied. On the other hand, the causal relationship between the fact of the breach of duty of disclosure and the occurrence of an insurance accident is determined only when the insurance accident occurred. However, even if the causal relationship between the fact of the breach of duty of disclosure and the occurrence of an insurance accident is not acknowledged under the proviso of Article 655 of the Commercial Act, it is reasonable to interpret that the insurance contract can be terminated due to breach of duty of disclosure for reasons of breach of duty of disclosure under Article 651 of the Commercial Act. If termination of the insurance contract is not permitted under Article 651 of the Commercial Act, the insurer cannot terminate the insurance relationship after termination of the insurance contract.

Therefore, as seen earlier, insofar as the Plaintiff’s intentional or gross negligence on the part of the Plaintiff’s breach of duty of disclosure is recognized, the termination of the instant insurance contract is valid without relation between the breach of duty of disclosure and the existence of causation between the instant insurance accident and the breach of duty of disclosure

(3) Scope of Defendant’s liability to pay the insured amount

On the other hand, even if the termination of the insurance contract of this case is valid, if it is proved that the above violation did not affect the occurrence of the insurance accident of this case, the defendant is liable to pay the insurance amount caused by the insurance accident of this case before termination pursuant to the proviso of Article 655 of the Commercial Act. In this case, the insurance accident of this case is caused by acute thirrosis, and diagnosis, hospitalization, surgery, etc. are not a separate insurance accident but a cause for the payment of insurance amount arising from the occurrence of the insurance accident of this case is an interpretation consistent with social norms or the parties' intent. Thus, if the duty for disclosure is proved to have not affected the occurrence of the insurance accident of this case, the defendant is liable to pay the insurance amount related to the hospitalization and operation, etc. due to the continuous treatment of acute thirral thirral tyral tyral tyral tyral tyral disease even after the termination of the insurance contract of this case sought by the plaintiff in this case.

Accordingly, according to Article 28(5) of the Insurance Terms and Conditions of this case, the plaintiff asserts that the defendant cannot be exempted from liability to pay insurance proceeds so long as the violation of the duty of disclosure and the existence of causations with the occurrence of an insurance accident cannot be proved by the defendant. Thus, if the defendant fails to prove that he violated the duty of notification before the insurance contract was affected by the occurrence of the cause for payment of insurance proceeds, the above terms and conditions of the contract shall be paid before the contract is terminated or guaranteed regardless of the termination or guarantee of the contract. It is clear that it means that the "insurance proceeds occurred before the termination or guarantee of the contract is restricted" is not the whole insurance amount caused by the insurance accident that occurred before the contract is terminated, but only the "insurance proceeds occurred before the termination or guarantee of the contract". As seen above, the defendant has already paid the insurance proceeds due to the cause for payment of insurance proceeds arising before the termination of the insurance contract of this case, so there is no room for application of the above terms and conditions of the above plaintiff's assertion.

Therefore, in light of the Plaintiff’s violation of the duty of disclosure and the existence of causation between the occurrence of the instant insurance accident and the occurrence of the instant accident, it is not sufficient to acknowledge the results of the fact-finding on the Plaintiff’s 1, 2, 4-2-1, 4-2-2, 00 center head of this court, and 000 hospital head of the 00 center head of this court, and each fact-finding on the Plaintiff’s 7-2000 hospital head. Rather, in full view of the purport of the argument as to the above fact-finding evidence, the symptoms of the instant insurance accident were flad, hump, humphal, pume, hume, scarf, scarf, and pumf, etc., and the symptoms of the Plaintiff’s appeal, which were similar to each of the above symptoms, were found at the time of the Plaintiff’s occurrence of the instant insurance accident, and thus, the Plaintiff did not have any influence on the instant medical accident from the date of disclosure.

Therefore, it cannot be viewed that the defendant is liable for paying the insurance amount resulting from the insurance accident of this case except for the insurance amount which was paid pursuant to Article 28(5) of the above terms and conditions. (3) Whether the termination is limited due to the defendant's violation of the duty to explain or not

In light of the above, the insurer and the person engaged in the conclusion or solicitation of insurance contracts are obligated to provide the policyholder or the insured with specific and detailed explanation and explanation of the important contents of the insurance contract, such as the contents of the insurance contract, the insurance premium rate system, and changes in the entries in the written subscription for insurance, etc. Therefore, if the insurer concludes the insurance contract in violation of such duty to specify and explain the terms and conditions, it cannot be asserted as the contents of the insurance contract. However, the insurer's explanation and explanation of such terms and conditions are acknowledged as the content of the contract, while the policyholder is unaware of the terms and conditions, so it is reasonable to avoid the disadvantage that the policyholder would suffer unexpected disadvantages. Thus, even if the terms and conditions are stipulated in the insurance contract, it is common and common to the transaction, or it is difficult to provide the insurer with separate explanation and explanation as to the terms and conditions of the insurance contract (see, e.g., Supreme Court Decision 2003Da15360, May 30, 2003).

Therefore, the insurance contract of this case was lawfully terminated by the defendant's notice of termination on October 7, 2008, and the defendant is not liable to pay the insurance amount resulting from the insurance accident of this case except for the insurance amount already paid pursuant to Article 28 (5) of the above terms and conditions. Thus, the plaintiff's claim of this case seeking confirmation of cancellation of the insurance contract of this case and additional payment of the insurance amount is without merit without further review.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.

Justices Shin Young-chul and decorations

Judges Cho Young-hee

Judges Cho So-young