Plaintiff 1 and one other (Law Firm Jae-sung, Attorneys Lee Jae- lodging et al., Counsel for the plaintiff-appellant)

AbC Co., Ltd and two others (Attorneys Kim Yong-hwan et al., Counsel for the plaintiff-appellant)

October 13, 2011

Seoul Central District Court Decision 2010Gahap56000 Decided February 16, 201

1. Revocation of the first instance judgment.

2. We confirm that Plaintiff 1 is not in the insured status of the non-distribution hybrid social life insurance contract (contract No. 1 omitted) between Defendant S&C and Defendant C&C and Defendant C&C, and that Plaintiff 2 is not in the insured status of the non-distribution flight insurance contract (contract No. 2 omitted), the life insurance contract (contract No. 3 omitted), the life insurance contract (contract No. 3 omitted) between Defendant S&C and Defendant C&C and Defendant C&C and the life insurance company (contract No. 4 omitted).

3. The total costs of the lawsuit shall be borne by the Defendants.

The judgment of the court of first instance is revoked. In addition, the judgment of the court of first instance is revoked. The judgment of the court of first instance as to each insurance contract described in the main clause of paragraph (2) is rendered by the defendant, and the defendant M&C Co., Ltd. and the ASEAN Life Insurance Co., Ltd will express their intention to accept each insurance contract.

1. Conclusion of each of the instant insurance contracts and retirement of the Plaintiffs

From March 31, 2007 to April 13, 2008, Plaintiff 1 was an auditor of S&C Co., Ltd. (hereinafter “Defendant S&C”), and was employed as a director from April 14, 2008, respectively. Plaintiff 2 was appointed as a director of Defendant S&C on September 21, 1995, and was employed as the representative director from March 14, 2001.

In order to prepare consolation benefits for its officers and employees to be paid when they die or have a disability while in office, the Defendant AbC concluded each of the following insurance contracts (hereinafter “each of the insurance contracts of this case”) with regard to the insured, the Defendant AbC as an beneficiary, and the Plaintiff’s death or a certain disability during the insurance period, etc., and the Plaintiffs agreed to become the insured of each of the insurance contracts of this case.

① On January 31, 2007, Defendant ABA Life Insurance Co., Ltd. (hereinafter “Defendant ABA”) and the insured on January 31, 2007, concluded a non-dividend DBA benefit insurance contract (contract number 4 omitted, insurance amount of KRW 150 million, monthly insurance premium of KRW 2.5 million) with Plaintiff B as the insured.

② On October 1, 2008, Defendant Teaching Life Insurance Co., Ltd. (hereinafter referred to as Defendant Teaching Life Insurance Co., Ltd.) and the insured on October 1, 2008, the Plaintiff 2 entered into a new life insurance contract (contract number 2 omitted, insurance amount of KRW 500 million, monthly insurance premium of KRW 1,865,00).

③ On January 8, 2009, the Defendant M&C and the insured on January 1, 2009 entered into an insurance contract for non-payment of dividends, VIP change amount, N&C social life (contract number 1 omitted, insurance amount of KRW 1 billion, insurance amount of KRW 1.5 billion, and monthly insurance premium of KRW 1.51 million).

④ Conclusion of a new insurance contract (contract No. 3 omitted, insurance amount to KRW 50 million, monthly insurance amount to KRW 2050,000) with the insured on August 7, 2009 with Plaintiff 2 as the insured.

After that, on February 12, 2010, the Plaintiffs retired from AbC and requested the Defendants to amend or terminate each of the insurance contracts of this case. However, Defendant AbC refused the change of the insured on the ground that the change of each of the insurance contracts of this case was impossible and only the termination is possible during the contract under the Defendant AbC, which is the party to the contract. Defendant AbC refused the termination of the contract on the ground that it is too small to receive the refund for termination when the contract is terminated even during the middle of the contract, and that it is too small to receive the refund for termination.

On the other hand, the Financial Supervisory Service revised the standard terms and conditions of life insurance as of January 29, 2010, and newly established a provision allowing the insured to withdraw his/her written consent at any time following the conclusion of the contract in the life insurance contract where the death of another person is subject to the payment of insurance proceeds. As above, the amended standard terms and conditions of life insurance was enforced from April 1, 2010.

[Reasons for Recognition] Unsatisfy, Gap evidence 2-2, Gap evidence 5, Eul evidence 6, 7-1, 2, Eul evidence 1 through 3, 5 through 7, Eul evidence 1-1 through 3, Eul evidence 2-2, Eul evidence 3, 4, Eul evidence 5-1 through 3, Eul evidence 5-1 through 3, Eul evidence 1, 2, fact-finding with the Financial Supervisory Service of the first instance court, the results of fact-finding with the Financial Supervisory Service of the first instance court, the purport of the whole pleadings

2. The plaintiffs' claims

(a) The primary claim

The Plaintiffs’ consent to the conclusion of each of the instant insurance contracts is an expression of intent made under the condition of rescission. Also, considering the purport of newly establishing the right to withdrawal of the consent of the insured under the amended life insurance standard terms and conditions, and the fact that the Plaintiffs’ consent to each of the instant insurance contracts is likely to cause harm and harm to the life or body of the Plaintiffs due to the significant changes in circumstances that the Plaintiffs retire from the Defendant AbC, it should be deemed that the Plaintiffs’ consent to each of the instant insurance contracts was valid.

Meanwhile, the Plaintiffs are legally obligated to pay each of the instant insurance contracts to their surviving families upon the receipt of the insurance proceeds from the Defendant AnnbC’s receipt of the insurance proceeds, and naturally deviate from the status of the insured if the Plaintiffs retire from the position of the insured. As such, the Plaintiffs’ written consent was revoked on the ground of mistake or fraud.

Therefore, the Plaintiffs are no longer in the status of the insured of each of the instant insurance contracts, and the Defendants are obligated to verify such status.

(b) Preliminary claim

Even so, the insured of each of the instant insurance contracts should be modified due to the significant change in the circumstances of the plaintiffs' retirement. As such, the defendant AbC expressed its intention to change the insured of each of the instant insurance contracts to the officers currently in office, who are not the plaintiffs, and the defendant IbC is obliged to express its intent to accept the insurance contracts.

3. Determination on this safety defense

The Defendants asserted that the primary claim in the instant lawsuit is unlawful as there is no benefit of confirmation, since it cannot be deemed that there exists a risk to the life or body of the Plaintiffs due to each of the instant insurance contracts, and even if such risk exists, it is merely a de facto risk.

The benefit of confirmation in a lawsuit for confirmation is recognized in cases where there is a dispute between the parties as to the legal relationship subject to confirmation, and thereby, it is recognized as the most effective and appropriate means to determine as the judgment in order to eliminate the plaintiff's legal status's apprehension and danger (see Supreme Court Decision 93Da40089 delivered on November 22, 1994, etc.).

As seen earlier, there is a dispute as to whether the plaintiffs are the legal status of the insured of each insurance contract of this case and as such, so long as there is a dispute about the existence of the status of the insured against the plaintiffs, the judgment of confirmation shall be the effective and appropriate means to remove the plaintiffs' legal status and risks due to the above dispute. In addition, the issue of whether the plaintiffs can be viewed as causing danger to the plaintiffs' life or body by maintaining their status as the insured of each insurance contract of this case is one of the circumstances supporting the validity of the above main claim, and the interests of confirmation seeking confirmation of the absence of the status of the insured cannot be denied on the ground that there is no risk. Accordingly, the above safety defense by the defendants is without merit.

4. Judgment on the merits

A. Whether the plaintiffs' consent is an expression of intent subject to rescission

In order to secure the consolation benefits, etc. to be paid in the event of the plaintiffs' death while in office, the fact that the plaintiffs entered into each of the insurance contracts of this case was earlier acknowledged. However, such circumstance alone is difficult to view that the plaintiffs' consent to become the insured of each of the insurance contracts of this case as conditional declaration of intention under the terms of termination, and there is no other evidence to acknowledge it otherwise.

B. Whether consent to each of the insurance contracts of this case is withdrawn

Each of the instant insurance contracts constitutes “the life insurance for another person” which Defendant AWC, the insured, and concluded as an insured accident against the death of the insured. As to the life insurance for another person, where the unlimited recognition of an insurance contract which covers the death of another person as an insured accident, such insurance is abused for the purpose of gambling, harmful effects caused by the speculative nature of the insurance, intentional harm to the life of the insured, and risk of infringement on public order and good morals from taking the death of another person as the condition for the payment of insurance money without the consent of the person concerned. As for legislation to prevent such risk, the principle of profit allowing the insured to enter into an insurance contract only where the insured has pecuniary interest in the life or death of the insured, the principle of consent demanding the consent of the insured as to the conclusion of the insurance contract is representative, and there is also a relative principle allowing the conclusion of the insurance contract only to other relatives within a certain scope (see Constitutional Court en banc Decision 98Hun-Ga6, Sept. 16, 199).

As above, since the life insurance of another person cannot be unlimitedly permitted, there is an urgent need for the insured to request the consent of the insured as above, and such restriction related to the insured of life insurance of another person is required not only to the conclusion of the insurance contract but also to be required to continue the insurance contract. Accordingly, under the Commercial Act of Korea, the insured's written consent to the conclusion of life insurance of another person is required and there is any change in circumstances such as the change of the beneficiary, etc., such change in circumstances as the change of the beneficiary. In the same regard, in the life insurance contract where the death of another person is subject to the payment of insurance money, the revised life insurance standard terms stipulate that the insured can withdraw the written consent at any time after the conclusion of the contract (this is reasonable to deem that the previous terms and conditions which did not recognize the right to withdrawal of written consent are amended from reflective consideration that the former terms and conditions which did not recognize the right to withdrawal of written consent are unfair), it is reasonable to deem that the insured can withdraw the written consent without the consent of the other contracting party.

On the other hand, the consent of the insured in life insurance for another person constitutes quasi-legal act with declaration of absence of objection to the relevant insurance contract, and if the consent of the insured is withdrawn, the insurance contract with respect to the relevant insured shall be deemed not to maintain the status of the insured after the termination of the insurance contract (see Supreme Court Decision 2007Da42877, 42884, Oct. 12, 2007, etc.).

Considering the overall purport of arguments in Gap 2 and 7 evidence Nos. 1, 2, Eul 1 through 3, Eul 5-1 through 3, Eul 1, and 3, each insurance solicitor of each of the insurance contracts of this case is well aware that "if an insured event, such as death, etc., occurs while the plaintiff serves as a beneficiary, he/she shall receive insurance money as a beneficiary and return to the bereaved family of the plaintiffs," and accordingly, he/she recommended the conclusion of each of the insurance contracts of this case. The defendant ASEAN life insurance as a corporation in another life insurance and as the insured shall attach a business registration certificate of the corporation and the consent to designate the beneficiary of the insured as the beneficiary of the insurance contract of each of the above case, and the plaintiffs' consent to the designation of the beneficiary of the insurance contract of the defendant ASEAN as the beneficiary of the above insurance contract of each of the above case shall be stated as the "this case's insurance contract of this case's insurance contract of this case, which is the defendant 2's employment insurance beneficiary of each of this case's."

Therefore, inasmuch as there was a significant change in the circumstances that form the premise of each insurance contract of this case as the plaintiffs retired from Defendant S&C on February 12, 2010, the plaintiffs could withdraw their consent to each insurance contract of this case, and it is apparent in the record that the duplicate of the complaint of this case, which can be deemed to have included the intent to withdraw their consent, was served on June 9, 2010 and June 10, 2010, the plaintiffs' consent to each insurance contract of this case is valid and the plaintiffs are no longer in the status of the insured of each insurance contract of this case.

C. Sub-decision

Ultimately, the plaintiffs have interests in seeking confirmation of the absence of their status as the insured by the defendants disputing the existence of their status as the insured of each of the insurance contracts of this case. Thus, the plaintiffs' primary claims are with merit without any need to further examine the remaining parts.

5. Conclusion

Therefore, the plaintiffs' primary claim seeking confirmation of the absence of status as the insured of each of the insurance contracts of this case is accepted, and the judgment of the court of first instance is unfair with different conclusions, and it is so decided as per Disposition with the revocation of the primary claim of the plaintiffs.

Judges Lee Jae-won (Presiding Judge)