(영문) 서울행정법원 2008.1.8.선고 2007구합27172 판결

A. On July 18, 2007, the Plaintiff Company submitted an application for registration of damage adjusting business to the Defendant for the purpose of conducting all damage assessment activities under each subparagraph of Article 188 of the Insurance Business Act (hereinafter referred to as the “application of this case”). While the application of this case is written as the “business conducted by the Damage Adjusters of Class 1, 2, 3, and 4,” the employment status of the damage adjuster was written as only the “business conducted by the Damage Adjusters of Class 3, 00, 00 and 00, 3, 3, 3, 3, 4, 4, and the employment status of the damage adjuster.”

B. Accordingly, the Defendant returned the instant application to the Plaintiff Company on the same day (hereinafter referred to as the “instant disposition”) by requiring the Plaintiff Company to supplement the work to be conducted by the Plaintiff Company according to the qualifications of the certified claims adjuster or to add the work to the work to be conducted by the employment certified claims adjuster, on the premise that all of the qualifications of certified claims adjuster Nos. 1 through 4 are required in order to conduct the business of evaluating Nos. 1 to 4

[Ground of recognition] Unsatisfy, Gap evidence 1-1-8, Gap evidence 5-5, the purport of the whole pleadings

2. Judgment on the Defendant’s main defense

The Defendant requested supplementation of the instant application on the ground that there was an omission of matters to be stated in the instant application, and rejected the instant application and did not refuse the Plaintiff’s request for registration. As such, the instant disposition cannot be deemed a disposition that is the subject of administrative litigation, and accordingly, asserts that the instant lawsuit is unlawful.

In light of the following, the Plaintiff Company: (a) stated in the new letter of contract of this case all types 1 to 4, on the ground that Article 97 of the Enforcement Decree of the Insurance Business Act, which classifys the qualification of certified claims adjusters into classes 1 through 4, and Article 52 of the Enforcement Rule of the Insurance Business Act, is able to engage in all claims adjustment business provided for in each of the subparagraphs of Article 188 of the Insurance Business Act, without any restriction, on the premise that the qualification of certified claims adjusters and the scope of the business of certified claims adjusters are null and void; (b) thus, the Defendant’s rejection of the instant application at the time of demanding supplementation to be consistent with the qualification of the employment certified claims adjusters and the business of certified claims adjusters constitutes an administrative disposition subject to appeal. Accordingly, the Defendant’s safety defense is without merit.

3. Whether the disposition is legitimate;

A. The plaintiff company's assertion

A certified claims adjuster under Article 186 of the Insurance Business Act only plans a single type of certified claims adjuster who can perform all the damage-related circumstances under each subparagraph of Article 188, and it cannot be said that a different type of accident or type of insurance is scheduled to deal with the business. However, Article 97 of the Enforcement Decree of the Insurance Business Act and Article 52 of the Enforcement Rule of the Insurance Business Act stipulate that a certified claims adjuster's qualification shall be divided and limited to the category and scope of the business he/she intends to engage in. It is invalid because it restricts the rights of certified claims adjuster's license without any delegation of the Insurance Business Act.

Therefore, even though the application for registration of the Plaintiff’s damage adjusting business was lawful and invalid, the instant disposition rejecting the application for registration of the Plaintiff’s company pursuant to Article 97 of the Enforcement Decree of the Insurance Business Act and Article 52 of the Enforcement Rule of the Insurance Business Act, which rejected the application for registration of the Plaintiff’s company pursuant to Article 97 of the Enforcement Decree of the Insurance Business Act and Article 52 of the Enforcement Rule of the Insurance Business Act is unlawful.

(b) Related statutes;

As shown in the attached Form.

C. Determination

(1) Adjustment refers to the business of assessing the amount of damage and the amount of insurance proceeds in respect of damage caused by an insured event. The Insurance Business Act is entrusted to "damage adjuster" or "damage adjusting business" in Articles 185 and 188.

(2) However, as seen earlier, Article 186(1) of the Insurance Business Act provides, “A person who intends to become a certified damage adjuster shall pass an examination conducted by the Governor of the Financial Supervisory Commission and complete in-service training for a certain period.” Paragraph (2) provides, “The subjects of the examination under paragraph (1) and the exemption from examination, the period of in-service training, etc. shall be determined by the Ordinance of the Ministry of Finance and Economy.” Meanwhile, Article 187 provides, “A person who intends to engage in damage adjusting business or damage adjusting business shall be entitled to engage in the registration of a certified damage adjuster under Article 186 and damage adjusting business under Article 187, which provides, “A person who intends to be a certified damage adjuster shall be entitled to engage in the same type of damage adjuster examination as prescribed by the Ordinance of the Ministry of Finance and Economy, and a person who is registered with the Financial Supervisory Commission after completing in-service training for a certain period of time, shall be entitled to separate the scope of qualifications of certified damage adjusters from those under each subparagraph of Article 188.”

In light of such contents of the Insurance Business Act, a claims adjuster under Article 186 of the Insurance Business Act is expected to be a single type of claims adjuster who can perform all the claims adjustment business under each subparagraph of Article 188, and cannot be said to be a different claims adjuster who has different qualifications depending on the type of insurance accident or insurance type. Thus, Article 97(1)3 of the Enforcement Decree of the Insurance Business Act and Article 52 of the Enforcement Rule of the Insurance Business Act stipulate that the scope of claims adjuster's license shall be limited to the types and scope of the business he/she intends to engage in, without any delegation of the Insurance Business Act, is invalid because it restricts the rights of claims adjuster without any delegation of the Insurance Business Act.

(3) Likewise, Article 187(2) of the Insurance Business Act provides that “a corporation that intends to engage in damage adjusting business shall have a certified damage adjuster exceeding the number prescribed by the Presidential Decree.” Article 98(1) of the Enforcement Decree of the Insurance Business Act based on the delegation above provides that “a corporation that intends to engage in damage adjusting business under Article 187(2) of the Act shall have two or more full-time certified damage adjusters.” There is no provision that only provides that “a corporation that intends to engage in damage adjusting business shall engage in damage adjusting business under Article 187(2) of the Act, and there is no provision that restricts the types and scope of the business of a corporation that engages in damage adjusting business under the Enforcement Decree of the Insurance Business Act and the Enforcement Rule of the same Act and the Enforcement Rule thereof. Therefore, a corporation that intends to engage in damage adjusting business may register only two full-time certified damage adjusters, and as seen earlier, a corporation that is registered as a damage adjusting business operator may perform all of the damage adjusting business prescribed in each subparagraph of Article 188 of the Insurance Business Act.

(4) Therefore, inasmuch as the Defendant who was entrusted with the registration of a damage adjusting business operator under Article 194(2)6 of the Insurance Business Act has filed an application for registration that satisfies the requirements of Article 97(1)3 of the Enforcement Decree of the Insurance Business Act with two or more full-time damage adjusters, even if the Plaintiff Company entered all the kinds of classes 1 through 4 as a result of running business, the instant disposition rejecting the application for registration of the Plaintiff Company on the premise that the type and scope of the business run by the damage adjuster is distinct, even though the Plaintiff’s application should be accepted and the registration should be accepted, in order to distinguish the types and scope of the business run by the damage adjuster, in order to divide the types and scope of the businesses by the damage adjuster and to limit the types of the businesses classified by the damage adjuster, the instant disposition rejecting the application for registration of the Plaintiff Company should be made under the Act on the Examination and Business to define the types and scope of the businesses that the Plaintiff is entitled to perform, or to enact the subordinate laws so that it satisfies the requirements of the Plaintiff Company.

4. Conclusion

Therefore, the claim of this case by the plaintiff company is justified, and it is so decided as per Disposition with the acceptance of it.

Judges

Justices Kim Jong-hwan

Site of separate sheet

Kim Jong-sung

Madro-young

Related Acts and subordinate statutes

Insurance Business Act

Article 185 (Adjustment) Any non-life insurance company shall employ a certified damage adjuster to take charge of damage adjusting the amount of damage caused by an insurance accident and the amount of insurance proceeds (hereinafter referred to as "damage adjusting") or appoint a certified damage adjuster or a person engaged in damage adjusting business (hereinafter referred to as "damage adjusting business operator") to entrust him/her with damage adjusting services: Provided, That this shall not apply where an insurance accident occurs in a foreign country, or a policyholder, etc. appoints a certified damage adjuster separately according to the standards set by the Financial Supervisory Commission.

Article 186 (Certified Damage Adjusters)

(1) Any person who intends to be a certified damage adjuster shall pass an examination conducted by the Governor of the Financial Supervisory Service and complete on-the-job training for a certain period.

(2) Matters necessary for the subjects and exemption from the examination and the period of practical training referred to in paragraph (1) shall be prescribed by Ordinance of the Ministry of Finance and Economy.

Article 187 (Damage Adjusting Business)

(1) Any person who intends to engage in damage adjusting business shall register with the Financial Supervisory Commission.

(2) Any corporation intending to run damage adjusting business shall keep a certified damage adjuster in excess of the number prescribed by Presidential Decree.

(3) Any person who intends to register under paragraph (1) shall pay fees prescribed by the Ordinance of the Ministry of Finance and Economy.

(4) Other matters necessary for the registration of the damage evaluating business shall be determined by the Presidential Decree.

Article 188 (Services of Certified Damage Adjusters, etc.) Any certified damage adjuster or damage adjusting business operator shall render the following services:

1. Confirmation of the occurrence of damage;

2. Determination as to the appropriateness of the application of insurance clauses and relevant laws and regulations

3. Assessment of damages and insurance proceeds;

4. Vicarious preparation and submission of documents related to the affairs referred to in subparagraphs 1 through 3;

5. Statement of opinions on insurance companies related to the performance of duties referred to in subparagraphs 1 through 3.

Article 189 (Duties, etc. of Certified Damage Adjusters)

(3) No certified damage adjuster or damage adjusting business operator shall unfairly infringe on the interests of policyholders and any other interested persons while rendering damage adjusting services and perform the act falling under any of the following subparagraphs:

6. The act that is prescribed by the Presidential Decree as impeding the fair service of evaluating damage.

Article 194 (Entrustment of Business Affairs)

(2) The following affairs shall be entrusted to the Governor of the Financial Supervisory Service:

5. The work of having certified damage evaluators registered under Article 186; and

6. The work of having any person intending to run the damage evaluating business registered under Article 187; and

/ Enforcement Decree of the Insurance Business Act

Article 97 (Registration of Damage Adjusting Business)

(1) A person who intends to register his damage adjusting business pursuant to Article 187 (1) of the Act shall file with the Financial Supervisory Commission an application re-written for the following matters:

1. Name (in cases of a juristic person, its trade name and name of its representative);

2. Location of its office;

3. Kind and scope of the business he intends to run; and

4. Matters relating to the employment of damage evaluators under Article 98.

(2) A written application under paragraph (1) shall be accompanied by the following documents:

1. Articles of incorporation (limited to a juristic person);

2. The representative (including the executives in cases of a corporation) and the resume of a certified damage adjuster belonging thereto;

3. Documents stating the status of property for business purposes.

(3) A damage adjusting business operator who has registered under paragraphs (1) and (2) shall, when any change has occurred in the registered matters, report the changed matters to the Financial Supervisory Commission within one week.

Article 98 (Number of Certified Damage Adjusters to be Placed by Corporation Damage Adjusters)

(1) Any corporation intending to run a business of evaluating damage under Article 187 (2) of the Act shall keep two or more full-time certified damage adjusters.

(2) Where any corporation referred to in paragraph (1) intends to establish branches or offices, it shall keep one or more damage evaluators by type of business to be run pursuant to the classification of damage evaluators prescribed by the Ordinance of the Ministry of Finance and Economy.

Article 99 (Duties of Certified Damage Adjusters, etc.)

The term “act prescribed by the Presidential Decree” in Article 189 (3) 6 of the Act means the act falling under each of the following subparagraphs:

1. Performing a damage evaluation other than the registered business lines;

【Enforcement Rule of the Insurance Business Act

Article 52 (Classification of Certified Damage Adjusters)

(1) A certified damage adjuster under Article 186 of the Act shall be classified into a certified damage adjuster 1, a certified damage adjuster 2, a certified damage adjuster 3 and a certified damage adjuster 4, and a certified damage adjuster 3 shall be classified into a certified damage adjuster 1 and a certified damage adjuster 10.

(2) Class 1 damage adjusters shall assess the liability insurance, technology insurance, credit damage insurance, and the amount of damage caused by a fire insurance under subparagraphs 1 through 5 of Article 3.

(3) A Class 2 adjuster shall assess the amount of damages of a marine insurance (including ship cargo insurance, aviation insurance, and transportation insurance).

(4) Among Class III certified damage adjusters, a large damage adjuster shall assess the amount of damage related to a person's body caused by a motor vehicle accident, and a large-scale certified damage adjuster shall assess the amount of damage on a motor vehicle and other property.

(5) A Class 4 certified damage adjuster shall assess the amount of damages of an accident insurance, disease insurance, and nursing insurance.

Article 53 (Examination Subjects and Exemption from Examination of Certified Damage Adjusters)

(1) Examination subjects for certified damage adjusters shall be as specified in attached Table 2.

[Attachment 2] Subjects of Examination for Certified Damage Adjusters (Related to Article 53(1)

A person shall be appointed.

- Finally