[1] Where an organization fails to comply with the "laws" stipulated in Article 735-3 of the Commercial Act when it concludes a life insurance contract for which all or part of its members are the insured, the effective requirements as an insurance contract (=the written consent of the insured)

[2] The meaning of "laws" stipulated under Article 735-3 of the Commercial Act as the effective requirements for group insurance, and whether the existence of the above regulations can be recognized based on general provisions concerning employment and dismissal of workers under rules of employment or collective agreement, disaster relief, etc. (negative)

[3] The method of the insured's consent as a requirement for the validity of group insurance that is not equipped with "laws" as stipulated in Article 735-3 of the Commercial Act

[4] The termination date of the insurance contract which covers the death of another person as an insured event (=the time of conclusion of the insurance contract) where the insured has to express his/her consent in writing as an effective condition of the insurance contract or to prepare the alternative covenant

[5] Whether a person who concludes a group insurance contract without the rules stipulated in Article 735-3 of the Commercial Act or written consent stipulated in Article 731 of the Commercial Act violates the principle of good faith or the principle of no advice (negative)

[6] Whether an insurance solicitor bears the duty of explanation on the insured's written consent requirements in concluding an insurance contract of another person's death as an insured event (affirmative), and whether the insurer is liable for damages under Article 158 (1) of the former Insurance Business Act in a case where the insurance solicitor's failure to fulfill such duty of explanation becomes null and void (affirmative)

[7] Whether a beneficiary of a group insurance can enter into an insurance contract by designating him/her as a policyholder (affirmative)

[1] Article 735-3 of the Commercial Code provides that Article 731 shall not apply where an organization concludes a life insurance contract with all or part of its members as the insured in accordance with its rules. Thus, in order to constitute an organization insurance, it shall be a case where an insurance contract is concluded in accordance with the above provisions of the Commercial Code. If such regulations are not provided, it shall take effect as an insurance contract with written consent of the insured members in accordance with Article 731 of the Commercial Code, which is a mandatory law.

[2] Article 735-3 of the Commercial Code provides that the meaning of "laws" which demands the validity of group insurance as a requirement for group insurance is an agreement within the organization concerning the purchase of group insurance, such as collective agreements, rules of employment, and articles of association. It is sufficient if it does not necessarily stipulate detailed matters concerning the purchase of insurance in question, and if it contains the purport that the representative can enter into a collective contract for the purchase of such type of insurance for the union members. However, as long as the above regulations are substituted for the written consent of the insured under Article 731 of the Commercial Code, which is a mandatory law, it cannot be deemed that there is a general provision concerning the employment and dismissal of workers, disaster relief, etc. in the rules of employment or collective agreement.

[3] The method of the consent of the insured as a requirement for the validity of group insurance that is not equipped with the rules is limited to only written consent as stipulated by Article 731 of the Commercial Code, which is a mandatory law, and implied and presumed consent is not allowed.

[4] In an insurance contract which covers the death of another person as an insured event, the time when the insured has to express his/her consent in writing or agree to prepare a substitute agreement is the time until the conclusion of the insurance contract in light of the provisions of Article 731 of the Commercial Act.

[5] The legislative intent of Article 735-3 of the Commercial Code, which requires the written consent of the insured in the insurance contract which covers the death of another person as an insured accident, is to stipulate the life insurance contract where the whole or part of its members are the insured, the legislative intent of Article 731 (1) of the Commercial Code, which requires the existence of rules, such as collective agreement or rules of employment on group insurance equivalent to collective consent in lieu of the insured's individual consent, is to consider in addition to concerns over risk of causing harm to the insured, the risk of infringement on the public order and good morals, which is caused by the death of another person without the victim's consent, in addition to so-called gambling insurance or concerns about harm to the insured. In violation of the above provision, if a person who entered into a group insurance contract without the agreement or written consent without the above provision, denies the above legal purport of the above provision on the ground that it is against the principle of good faith and good faith, barring special circumstances, it cannot be deemed that such assertion violates the principle of trust and good faith.

[6] In concluding an insurance contract which covers the death of another person as an insured event, the insurance solicitor has a duty of care to make the policyholder obtain the opportunity to satisfy the requirements such as the written consent of the insured and take measures to make the effective insurance contract concluded. Nevertheless, if the insurance solicitor becomes null and void due to defects in the above requirements due to the failure to explain as above, and if the policyholder becomes unable to receive the insurance proceeds despite the occurrence of the insured events, the insurer is liable to compensate for damages equivalent to the insurance proceeds to the policyholder pursuant to Article 158 (1) of the former Insurance Business Act (wholly amended by Act No. 6891 of May 29, 2003).

[7] In the case of group insurance, since there are no specific provisions in the relevant laws such as the Commercial Code with regard to the designation of a beneficiary, a policyholder may enter into an insurance contract for another person with the insured, who is a member of an organization, as a beneficiary of an insurance policy. The policyholder may enter into an insurance contract for one's own interest with the policyholder as a beneficiary of an insurance policy. Since it is a group insurance, it does not necessarily have to be an insurance contract for another person, designating a beneficiary as a policyholder itself

[1] Articles 731(1) and 735-3 of the Commercial Act / [2] Articles 731(1) and 735-3 of the Commercial Act / [3] Articles 731(1) and 735-3 of the Commercial Act / [4] Articles 731(1) and 735-3 of the Commercial Act / [5] Articles 731(1) and 735-3 of the Commercial Act, Article 2 of the Civil Act / [6] Articles 638-3(1) and 731(1) of the Commercial Act, Article 158(1) (see current Article 102(1)) of the former Insurance Business Act (amended by Act No. 6891 of May 29, 2003) / [7] Article 735-3 of the Commercial Act

[1] [5] Supreme Court Decision 88Da3367 decided Nov. 28, 1989 (Gong1990, 130) / [1] Supreme Court Decision 91Da47109 decided Nov. 24, 1992 (Gong1993Sang, 216) Supreme Court Decision 99Da6043, 60450 decided Feb. 25, 200 / [3] Supreme Court Decision 2003Da2451 decided Jul. 22, 2003 (Gong203Ha, 1780) / [45] Supreme Court Decision 96Da37084 decided Nov. 22, 1996 (Gong197, 1997; 194Da37989 decided Nov. 29, 209) / [309Da949799 decided Nov. 29, 1998

Plaintiff 1 and two others (Attorney Seo-sik et al., Counsel for the plaintiff-appellant)

Samsung Life Insurance Co., Ltd. (Attorney Kim Young-hoon, Counsel for defendant-appellant)

Sungyang Industrial Co., Ltd.

Seoul High Court Decision 2003Na8536 delivered on October 9, 2003

All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.

The grounds of appeal are examined (if the supplemental appellate brief was not timely filed on January 19, 2004, to the extent that it supplements the grounds of appeal).

1. Regarding ground of appeal No. 1

Article 735-3 of the Commercial Act provides that Article 731 shall not apply where an organization concludes a life insurance contract with the whole or part of its members as the insured in accordance with its rules. Thus, in order to constitute an organization insurance, it shall be a case where the organization concludes an insurance contract in accordance with the above provisions of the Commercial Act. If such regulations are not provided, it shall take effect as an insurance contract with the written consent of the members of the insured in accordance with Article 731 of the Commercial Act (see Supreme Court Decisions 88Meu3367, Nov. 28, 1989; 91Da47109, Nov. 24, 1992; 99Da6043, Feb. 25, 200).

According to the records, the defendant assistant intervenor (hereinafter "the intervenor") submitted to the defendant a written confirmation of the contents of the agreement, which is the organization insurance of this case (hereinafter "the contract of this case"), together with the signature and seal of three representatives on the part of the insured workers, at the time of the conclusion of the insurance contract of this case, three representatives on the part of the insured workers, and the premium of this case shall be borne by the intervenor, and the insurance money shall be borne by the intervenor for the purpose of supporting the company, and the participant shall be posted to all the employees at the time of the insurance contract of this case as a policyholder and beneficiary, and the insured's death or accident of the insured shall be determined as an insurance accident, and the defendant shall not be required to sign and seal the contract of this case and shall not be required to sign and seal the rules of employment of this case as part of the contract of this case. The plaintiff shall not be required to sign and seal the rules of employment of this case for the purpose of supporting the company's insurance contract of this case, and the plaintiff shall not be required to sign and seal the company's employees.

According to the above facts and the legal principles as seen earlier, the written consent of the workers in relation to the insurance coverage of this case or the written confirmation of the contents of the above agreement submitted by the intervenor as a substitute agreement is only made at will by the persons without legitimate power of representation of the workers who are the insured workers, and thus did not meet the requirements for the written consent under Article 735-3 of the Commercial Act or Article 731 of the Commercial Act, and otherwise, the insurance contract of this case shall be deemed null and void as the defects of each of the above conditions of validity, unless there is any evidence to acknowledge the legitimate rules or written consent under the above provisions of the Commercial Act. In the same regard, the court below's decision that accepted the judgment of the court of first instance which accepted the judgment that the defendant did not bear the obligation of paying the insurance money

The ground of appeal argues that, based on the characteristics of group insurance, the use of insurance money under the content of this case's agreement, the rules of employment and dismissal of the intervenor company under the rules of employment, or general provisions such as landscape relief, etc., it should be viewed that there exists an implied or constructive consent of the insured under the above provisions of the Commercial Act or the insured. However, the meaning of "laws" required under Article 735-3 of the Commercial Act to be effective as group insurance is an agreement within the organization insurance such as collective agreement, rules of employment, articles of association, etc., and it is sufficient if it does not necessarily stipulate detailed matters concerning the purchase of group insurance, and it does not necessarily contain the purport that the representative can enter into a collective contract on behalf of the union members. However, since the above rules are substituted for the written consent of the insured under Article 731 of the Commercial Act, which is a mandatory law, it cannot be viewed that there is a general provision concerning the employment or dismissal of workers, or relief from accidents, etc., of the insured under the rules of employment or collective agreement.

In addition, the ground of appeal argues that even if the insurance contract of this case is null and void because it does not meet the requirements of the above legal provision or written consent, as long as the plaintiffs, the inheritor of the deceased, ratified the act of confirming the contents of the regulations of the above accounting department employees belonging to the act of unauthorized representation during the lawsuit of this case, the insurance contract of this case is retroactively effective. However, in the insurance contract which covers the death of another person as an insured accident, the time when the insured must express his/her consent in writing or make a substitute agreement shall be deemed to be until the time of conclusion of the insurance contract in light of the provisions of Article 731 of the Commercial Act. At least as in the case of this case, it is clear that the heir of the insured cannot recognize the retroactive effect of the insurance contract only after the occurrence of the insurance accident, and therefore, it is just in the judgment of the court below rejecting the allegation in the ground of appeal in this part. The remaining grounds of appeal in this part are based on the premise that the ratification of the insurance contract of this case is allowed after the occurrence

2. As to the grounds of appeal Nos. 2 and 3

Article 731(1) of the Commercial Act, which requires written consent of the insured in an insurance contract covering the death of another person as an insured event, where a group or organization concludes a life insurance contract involving the whole or part of its members as the insured, the legislative intent of Article 735-3 of the Commercial Act, which requires the existence of rules, such as collective insurance agreements or rules of employment, in lieu of individual consent of the insured, is to take into account the risk of infringement of public order and good customs by taking the death of another person as the condition of a speculative contract without the consent of the victim, in addition to concerns about the risk of harm to the insured, in addition to so-called gambling insurance or the insured. In violation of the above provision, if a person who concludes a collective insurance contract without any rules or written consent rejects the claim for invalidation on the ground that it violates the principle of good faith or good faith, barring special circumstances, such assertion may not be deemed as violating the principle of trust and good faith, etc. (see, e.g., Supreme Court Decision 2003Da3186486, Nov. 28, 1967, 1987

As seen earlier, in entering into the instant insurance contract, a group insurance company cannot be recognized as having a duty of care to specifically examine and confirm the authenticity of the intervenor’s internal circumstances, unless special circumstances exist to suspect the authenticity of the above agreement or the existence of the employees’ representative authority after the initial maturity of 1999, insofar as three members signed and sealed the agreement to enter into the said insurance contract at the request of an insurance solicitor who is the policyholder at the request of the intervenor who is the insured, and as long as the content of the agreement was submitted, it is difficult to recognize that the defendant-affiliated insurance solicitor has a duty of care to examine and confirm the authenticity of the intervenor’s internal circumstances. Furthermore, Article 4 of the Organization Insurance Agreement (Evidence A7-2) prepared by the defendant and the intervenor at the time of entering into the instant insurance contract, stating that “The collective agreement was made by agreement between the intervenor and its members.” Moreover, it is clearly notified that the content and method of the instant insurance contract was not first concluded in 201, but is contrary to the principles of trust and good faith, and thus, it cannot be seen as unlawful in light of various circumstances.

Meanwhile, when concluding an insurance contract which covers the death of another person as an insured accident, the insurance solicitor has a duty to explain the requirements such as the written consent of the insured to the policyholder in a specific and detailed manner so that the insurance solicitor can take measures to conclude the effective insurance contract by providing the policyholder with an opportunity to satisfy such requirements. Nevertheless, the insurance contract becomes null and void due to a defect in the above requirements, and if the policyholder is not entitled to receive the insurance money despite the occurrence of the insured accident, the insurer is liable to compensate the policyholder for the damage equivalent to the insurance money pursuant to Article 158 (1) of the former Insurance Business Act (amended by Act No. 6891 of May 29, 2003). However, as seen above, in the invalidation of the insurance contract of this case due to a defect in the above regulations or consent requirements, unless it is recognized that there is any reason attributable to the insurance solicitor belonging to the defendant or the violation of the duty of care, the plaintiffs' claim against the defendant cannot be accepted. It is justified in rejecting this part of the plaintiffs' claim, and there is no violation of law as alleged in the ground of appeal.

3. As to the fourth ground for appeal

In the case of group insurance such as this case, since there are no specific provisions in the relevant laws such as the Commercial Act with regard to the designation of a beneficiary, a policyholder may enter into an insurance contract for another person with the insured, who is a member of an organization, as a beneficiary of an insurance policy. A policyholder may enter into an insurance contract for one's own interest with the policyholder as a beneficiary of an insurance policy. Since it does not naturally have to enter into an insurance contract for another person, designating a beneficiary as a policyholder cannot be deemed as a violation of the essence of group insurance (see Supreme Court Decision 98Da59613, May 25, 199, etc.

The purport of the grounds of appeal is that the person to whom the right to claim damages based on Article 158(1) of the former Insurance Business Act belongs is the plaintiffs. However, in the insurance contract of this case, the beneficiary is designated in the insurance contract of this case as the intervenor and that it is permitted in light of the legal principles are as seen earlier. Meanwhile, the right to claim damages under Article 158(1) of the former Insurance Business Act is not the part of the intervenor's right and the right to claim damages is not the right of the nature that the plaintiffs, the heir of the deceased, the insured, are entitled to directly exercise. Therefore, the allegation in the grounds of appeal in this part is not acceptable. As seen earlier, there is no reason to view any conjunctive assertion in the grounds of appeal that the plaintiffs exercise each

4. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Yang Sung-tae (Presiding Justice)