Plaintiff (Attorney Kang-gu, Counsel for the plaintiff-appellant)

East Fire & Marine Insurance Co., Ltd. and 1 (Law Firm Vindication, Attorneys Jeon Jae-in et al., Counsel for the plaintiff-appellant)

September 8, 2006

Seoul Central District Court Decision 2004Gahap579 Delivered on July 1, 2005

1.The judgment of the first instance shall be modified as follows:

A. The Plaintiff’s portion of the instant lawsuit against Defendant Dongdong Fire Fire Marine Insurance Co., Ltd. seeking payment of KRW 11,370,550 among the instant lawsuit is dismissed.

B. The plaintiff's remaining claims against the defendant Dongdong Fire Fire Marine Insurance Co., Ltd. and the defendant Samsung Fire Marine Insurance Co., Ltd. are all dismissed.

2. The total costs of the lawsuit shall be borne by the plaintiff.

1. Purport of claim

The Plaintiff shall pay 767,027,263 won, 415,871,643 won, and 6% interest per annum from December 11, 2003 to the delivery date of a copy of the complaint of this case, and 20% interest per annum from the next day to the date of full payment.

2. Purport of appeal

Of the judgment of the court of first instance, the part against the plaintiff seeking payment is revoked. The defendant Dong-dong Fire Marine Insurance Co., Ltd. shall pay 314,163,035 won, the amount calculated by 219,914,124 won, and 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.

The defendants: The part against the defendants in the judgment of the court of first instance shall be revoked, and the plaintiff's claim corresponding to the revocation part shall be dismissed.

Due to this reason

1. Facts of recognition;

The reasons why a member should explain in this part are as follows: “A evidence 10-1 and 2 of the evidence No. 10-2 of the judgment of the first instance court,” “A No. 3 of the judgment of the third instance,” “F 5 of the judgment,” “F 5 of the judgment,” “Plaintiff 2, the actual owner of the household store of this case,” respectively, and “Plaintiff 2” of the fifth 8 of the judgment of the first instance court, except for adding the following parts under the 8th 18th 18th th 19, it is consistent with the corresponding column of the judgment of the first instance court. Therefore, it is intended to accept it as it is in accordance with Article 420 of the Civil Procedure Act.

“E. Assignment of Claim for Insurance Proceeds

On October 31, 2005, Nonparty 2 transferred to the Plaintiff the right to claim insurance money against the Defendants as the insured of each insurance contract of this case as of October 31, 2005, and notified the Defendants of the purport of the claim transfer on the same day.

2. Determination on this safety defense

(a) Litigation trust;

Defendant Dong-dong Fire asserts to the effect that each of the insurance contracts of this case is invalid because the insured of this case is Nonparty 2, the actual owner of the household store of this case, and that the claim for insurance money based on each of the insurance contracts of this case belongs to Nonparty 2. However, Nonparty 2 transferred the claim for insurance money to the Plaintiff solely for the purpose of performing a lawsuit without any special reason.

In a case where the assignment of claims primarily takes place, with the intention of allowing the plaintiff to take action, Article 7 of the Trust Act shall apply mutatis mutandis to the assignment of claims. However, the plaintiff and the non-party 2 shall be deemed null and void, because the plaintiff and the non-party 2 are registered as a business operator in the name of the plaintiff, and the plaintiff and the non-party 2 shall be deemed to be an economic same body. The plaintiff and the non-party 2 did not have any special necessity to bring the lawsuit in this case, and they entered the plaintiff as the insured at the time of entering into the insurance contract, and they were entitled to claim insurance money in the name of the plaintiff after the occurrence of the fire in this case, and they also caused the plaintiff to bring the lawsuit in this case. In light of all circumstances recognized in this case, such as the fact that the claim for insurance money was transferred from the above defendant to the plaintiff that there was no insurable interest in this case, it cannot be viewed that the above assignment of claims was made for the purpose of a third party to file a lawsuit under the plaintiff's name as prohibited by the Trust Act.

(b) Defects in collection rights;

Defendant Dong-Jin Fire has a defense to the effect that the attachment and collection order was already served on the part of KRW 11,370,550 among the claims against Defendant Dong-Jin Fire, which the Plaintiff had against the Defendant Dong-Jin Fire, and the lawsuit of this case relating to the above part is unlawful because it has no collection right to the Plaintiff. Thus, if there exists a seizure and collection order on the above part, only the collection obligee can file a lawsuit against the third obligor, and the obligor loses the standing to bring a lawsuit against the execution of the seized claim. In full view of the purport of pleading in the evidence evidence evidence evidence No. 7, Nonparty 1 is against the Defendant Dong-Jin District Court of Suwon on April 14, 2004 and Sung-nam Branch of 2004l (Serial number omitted) where the Plaintiff had against Defendant Dong-J in accordance with the first insurance contract, and pursuant to the provisional seizure order and the collection order order on the part of the insurance claim amount corresponding to KRW 11,370,500.

3. Judgment on the merits

(a) Occurrence of liability to pay insurance proceeds;

According to the above facts, the amount of damages caused by the fire of this case is 843,860,418 won in total, barring any special circumstance, the Defendants are obliged to pay the insurance proceeds calculated according to the terms and conditions of each insurance contract of this case to the Plaintiff who acquired the claim for insurance proceeds from Nonparty 2 of each insurance contract of this case from Nonparty 2.

B. Determination as to the defendants' assertion

(1) Indemnification due to intentional fire-prevention

The Defendants asserted that, in full view of the following circumstances: (a) the management status of the instant household store operated by Nonparty 2 was extremely aggravated at the time of the occurrence of the instant fire; (b) the causes of the instant fire, including electricity, have not been identified even based on the result of the National Institute of Scientific Investigation’s evaluation; (c) the point of combustion in the instant household store is presumed to be an artificial fire prevention because no source of fire has been found; and (d) the point of combustion in the instant household store is presumed to be the front part of the fire exhaustr; (d) there is any doubtful doubt about the situation that the instant fire accident was not artificial fire prevention; (e) the instant fire was closed two hours before the instant fire accident without any particular circumstance; and (v) Nonparty 2 received insurance money from Nonparty 3 or more fire accidents while operating the previous household store; and (v) considering the fact that Nonparty 2 offered convenience to the adjuster and large expenses, the Defendants are exempted from their respective liability to pay insurance money in accordance with the terms and conditions of the instant insurance contract and the instant insurance contract.

However, it is insufficient to conclude that the instant fire was a fire-fighting by Nonparty 2’s intentional act, and there is no other evidence to acknowledge it. Thus, the Defendants’ above assertion is without merit.

(2) invalid as a duplicate or excess insurance due to fraud.

The defendant Tran Fire asserts that each of the insurance contracts of this case is the duplicate and excess insurance concluded due to the plaintiff's fraud, and is null and void by Articles 669 and 672 of the Commercial Act, so there is no obligation to pay insurance money to the plaintiff.

Therefore, the insurance amount under each insurance contract of this case is 1.45 million won in total (i.e., 450 million won in building 4.5 million won + 1.55 million won in movable property + 8.50 million won in movable property due to fire caused by the building, facility, or movable property by the fire of this case). As acknowledged earlier, the insurance amount of each insurance contract of this case is 843,860,418 in total. Thus, the insurance amount of each insurance contract of this case is more than the value of the insurance object. However, since each insurance contract of this case is an unregistered insurance that is not a pre-determined insurance contract but an objective transaction investigation into the insurance object at the time and place of the occurrence of the insurance accident, it is difficult to readily conclude that the quantity or total price of the households kept within the household of this case has changed from time to time, not the insurance amount to be the insurance amount, but it can be reduced by the insurance company through the evaluation process, and it is difficult to intentionally conclude that the insurance amount of the plaintiff's subscription of this case was less than the insurance amount of each insurance contract of this case.

(3) Loss of claims for insurance money due to false claims

(A) The Defendants asserted that, as Nonparty 2 claimed for the payment of the insurance proceeds under the instant fire and entered false facts in the documents regarding the claim for insurance proceeds, each of the claims for insurance proceeds from the instant fire was lost in accordance with the terms and conditions of each of the instant insurance contracts. As to this, the Plaintiff asserted that, as a merchant, Nonparty 2 merely stated the sales price calculated by adding expenses and profits to the purchase price of households as a merchant, and that, in light of the practice in which the insurance proceeds are determined, the actual amount of damages was reduced in the ordinary course of damage assessment and the insurance proceeds were determined, the amount of damages

(B) Therefore, the following facts can be acknowledged in full view of the statements in Eul, Eul's evidence Nos. 1-1 through 3, Eul's evidence No. 3, 6, 14, 17 through 8, 94 through 107, 132, 14-2, 22, 235, Eul's evidence No. 8, Eul's evidence No. 1-2, Eul's evidence No. 3, 3, 4, 8, Eul's evidence No. 14-1, 2, and 14-2:

① On December 11, 2003, Nonparty 2 submitted the documents claiming insurance proceeds from the instant fire to the Internationalized Disaster Adjustment Co., Ltd. (hereinafter “Adjustment Co., Ltd.”) who represented the instant damage assessment (hereinafter “Adjustment Co., Ltd.”). The insurance proceeds claimed at the time were KRW 1,414,367,431 (i.e., KRW 263,478,000 + the amount of damages to the building + KRW 251,621,971 + the amount of damages to the facilities + KRW 89,267,460 for movable property).

② Meanwhile, upon receiving a claim for the payment of insurance money as above, Nonparty 2 received a request from a damage adjusting company to submit a document evidencing the amount of damages. The fact is that the actual purchase amount of the movable property destroyed by the instant fire is not equivalent to KRW 534,077,160 in total from 65 transaction parties, but it received a false transaction statement, etc. stating excessive sales amount from 49 transaction parties, and then submitted the above false transaction statement, etc. as if Nonparty 2 received a supply of household goods worth KRW 898,070,460 in total from the above 65 transaction parties, and was damaged by the fire of this case.

③ During the process of investigating the amount of damage caused by the instant fire, Nonparty 2 offered a proposal to the employee in charge of the instant damage for the case of KRW 50 million in relation to the payment of insurance money. However, Nonparty 2 brought an accusation against Nonparty 2 on the ground that the instant fire was highly likely to be caused by Nonparty 2’s fire-prevention, and that Nonparty 2 attempted to receive a large amount of insurance money based on the false transaction statement.

④ After that, Nonparty 2 was indicted due to the act of claiming insurance money based on the above false statement of trading, and was sentenced to imprisonment with prison labor for one year and six months and three years of suspended execution due to the act of attempted fraud under the Incheon District Court 2004 order (number omitted) on June 15, 2005, and the above judgment became final and conclusive around that time.

(C) According to the terms and conditions of each insurance contract of this case, "the contractor or the insured intentionally stated false facts in the documents concerning the notification of damages or claims for insurance proceeds, or forged or altered such documents or evidence" shall lose claims for insurance proceeds for damages. The amount of damages suffered by Nonparty 2 due to the fire of this case shall be KRW 118,864,362 in the case of the building, KRW 190,918,896 in the case of the movable property (household) and KRW 534,07,160 in the case of the above movable property, KRW 843,860 in the total amount of KRW 843,860 in the case of the above movable property and KRW 89,267,460 in the case of the above movable property and KRW 1.7 times in the actual amount of damages, it shall be deemed that Nonparty 2 intentionally stated the claim amount in the insurance contract of this case as if it were falsely stated in the terms and conditions of the insurance contract of this case and did not state the above false amount of damages.

C. Judgment on the Plaintiff’s assertion

(1) Violation of the duty to explain and explain terms and conditions

The Plaintiff asserts that the terms and conditions of each of the instant insurance contracts cannot be viewed as the content of each of the instant insurance contracts, since there was no explanation as to the above terms and conditions, which include the loss of claims against the Defendants at the time of conclusion of each of

In light of the above, the insurer and the person engaged in the conclusion or solicitation of the insurance contract are obliged 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 system of premium rates, and changes in the entries in the written subscription for the insurance contract, etc. Therefore, if the insurer concludes the insurance contract in violation of such duty to specify and explain the terms and conditions, the insurer cannot assert the contents of the terms and conditions as the content of the insurance contract. However, the insurer's explanation and explanation of such terms and conditions are acknowledged only when the policyholder did not know of the important matters of the terms and conditions, and it is reasonable to avoid the disadvantage that the policyholder would suffer unexpected disadvantages. Thus, even if the terms and conditions are prescribed in the terms and conditions, if the policyholder could have sufficiently predicted without any separate explanation because they are common and common in the transaction, or if they are merely about about or about the contents already prescribed in the Acts and subordinate statutes, it cannot be said that the insurer is

In this case, although it is unclear whether there was an explanation about the above terms and conditions at the time of entering into each of the insurance contracts in this case, it is difficult to regard it as an important content of the terms and conditions that have the duty to specify and explain since it was not acknowledged that there was such explanation, and further, the reason for loss of the right to claim insurance money stipulated in each of the terms and conditions of the insurance contracts in this case cannot be allowed to act of fraudulent insurance in violation of the principle of trust and good faith in the insurance contract. In addition, in the case of insurance accidents caused intentionally to prevent the speculation and gambling of insurance in the commercial law and prevent the insured from acquiring the unfair benefits above the actual damage, the insurer's exemption is recognized (Article 659 of the Commercial Act). In light of the purport of Article 69 (4) of the Commercial Act, in the case of an excess insurance caused by fraud, it is not an object of duty to explain and explain as it naturally falls under the matters that can be anticipated by the general parties in trade without the insurer's explanation. Therefore, the plaintiff's assertion above is without merit.

(2) Partial loss of claim for insurance money

The Plaintiff asserts that, apart from the fact that there was an excessive claim for insurance proceeds by false documents, the Defendants are obligated to pay the insurance proceeds for the actual amount of damages, and that the Defendants are obligated to pay the insurance proceeds for the buildings, facilities, and movables. ② In entering into the instant insurance contract, the amount of insurance proceeds for each of the buildings, facilities, and movables is separately determined and the insurance premiums are separately calculated. Accordingly, even if there was an excessive claim for insurance proceeds using false documents with regard to the movables, the claim for insurance proceeds for the buildings, facilities, and buildings based on the 1, 3 insurance contracts are still

First of all, the argument that the Defendants shall pay the insurance proceeds with respect to actual damages except for the portion claimed as excessive even if excessive insurance proceeds are claimed cannot be accepted in light of the terms of each insurance contract of this case stipulating the loss of claims for insurance proceeds due to false claims and their purport.

Next, in accordance with the legal principles of partial invalidation, the plaintiff still has a claim for insurance money concerning buildings and facilities based on the insurance contracts Nos. 1 and 3, so long as the insurance contracts Nos. 1 and 3 of this case are one contracts respectively, the contract shall be concluded, as alleged by the plaintiff, and even if the insurance contract was concluded by calculating the insurance premium, it cannot be deemed that each separate insurance contract has been concluded for each subject matter within the insurance contracts No. 1 and 3 of this case. On the other hand, the legal principles of partial invalidation or revocation are issues as to how to deal with some defects in the contract of this case. On the other hand, the loss of the right to claim insurance money due to fraudulent claims is based on the utmost good faith of the insurance contract, and thus, the plaintiff's above assertion is not accepted (in case of stating it differently from the fact, or of forging or altering the documents or evidence, it is difficult to view that the provision that causes the loss of the right to claim insurance money is null and void in all legal relations in accordance with the Regulation of Standardized Contracts Act.

(3) Subrogation of the person performing the obligation;

The plaintiff asserts that, among the objects of each insurance contract of this case, the plaintiff is the owner of the non-party 3 and the insured is the non-party 3. Thus, even if the non-party 2 filed a false claim for insurance proceeds with respect to movable property, it does not lose the claim for insurance proceeds of the non-party 3,50 million won, and that the plaintiff has the right to claim insurance proceeds from the fire of the building and facilities of the household of this case in subrogation of the non-party 3, as long as he accepted the household of this case and delivered it to the non-party

In light of the whole purport of oral argument, the non-party 2, on August 7, 200, leased the land where the store location of this case is located from the non-party 3 with the intention of building site creation and new construction cost of 24 million won from the non-party 3, and the lessee is required to construct the building in the name of the non-party 3 with all expenses, including taxes and public charges imposed on the non-party 5, and public charges imposed on the non-party 1, 12, Gap 14, 15, and Eul 17, in addition to the content of the insurance contract, if the insured and insured interest are unclear. In light of the whole purport of oral argument, the non-party 2, the non-party 2, who purchased the building of this case from the non-party 2, the non-party 3, and the non-party 2, the non-party 3, upon the request of the non-party 2, the lessee, and the lessee, after the expiration of the construction permit, the non-party 1, had no right to remove the building.

In light of the above facts, although the building of this case was built in the name of Nonparty 3 and completed registration of preservation of ownership, it is reasonable to view that Nonparty 2 had acquired the building of this case and facilities of this case as the owner of the building of this case and facilities of this case, considering the fact that Nonparty 2 also constructed the building of this case with his own effort and expenses, and guaranteed a rental period of five years for the building of this case, which is a relatively long period of time before the expiration of the lease period, and that Nonparty 3 had the lessee properly compensated for the building of this case before the lease period expires, it is reasonable to view that Nonparty 2, who actually purchased the building of this case and facilities of this case, was the owner of the building of this case (the construction of the building of this case and the construction of the building of the building of this case, although Nonparty 3 had subsidized the cost of construction of the building of this case, the construction of the building of this case and the construction of the building of the building of this case, which were located on the above land, were considered as only the cost of removal or construction. Accordingly, Nonparty 2 cannot be viewed as the building of this case’s.

4. Conclusion

Therefore, the part of the lawsuit of this case against the defendant Dongdong Fire Marine Insurance Co., Ltd. which sought payment of KRW 11,370,550 among the lawsuit of this case is unlawful and dismissed. The plaintiff's remaining claims against the defendant Dongdong Fire Marine Insurance Co., Ltd. and the claim against the defendant Yang Sung Fire Marine Insurance Co., Ltd. shall be dismissed as it is without merit. Thus, the decision of the court of first instance is unfair, and it is so decided as per Disposition by the decision of the court of first instance.

Judges Lee Jung-hun (Presiding Judge)