In a case where Gap insurance company violated the duty to clarify and explain under the former Act on the Regulation of Terms and Conditions with respect to the provisions related to the redemption of allowances to be paid and recovered at the time when Gap insurance company entered into a commission contract with Eul, the case affirming the judgment below which rejected Eul's assertion that Gap company violated the duty to clarify and explain the terms and conditions, but the judgment below rejected Eul's assertion that Gap company violated the duty to explain and explain the terms

Articles 2(1) and 3 of the former Act on the Regulation of Terms and Conditions (Amended by Act No. 10169, Mar. 22, 2010)

Plaintiff (Law Firm Gyeong, Attorneys Kim Yong-hoon, Counsel for the plaintiff-appellant)

Future Life Insurance Co., Ltd. (Attorneys Ansan Jae-de et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2011Na75296 decided February 24, 2012

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. Article 2(1) of the former Act on the Regulation of Terms and Conditions (amended by Act No. 10169, Mar. 22, 2010; hereinafter “Terms and Conditions Regulation Act”) provides that “Terms and Conditions” refers to a contractual content prepared in advance by either party to a contract to enter into a contract with a large number of other parties, irrespective of its name, form, or scope.

According to the reasoning of the judgment below and the records, at the time of entering into each of the commission contracts of this case, the plaintiff and the defendant agreed that the payment and redemption of allowances pursuant to Articles 2 and 5 of the FC Commission agreement and Article 6 of the SM Commission agreement of this case shall be governed by the provisions related to the refund of allowances of this case. The provision related to the refund of allowances of this case was prepared by the defendant in accordance with the provisions related to the supervision of insurance business and was based on the payment and redemption of allowances which form the contents of the contract when entering into the commission contract with multiple insurance solicitors like the plaintiff. The provision related to the refund of allowances of this case has the form of document, and is in existence as the name of the insurance business guidelines.

If the facts are as above, the provision related to the refund of the instant allowances is prepared in writing by the defendant, an insurance company, in the name of the insurance business guidelines in order to conclude the commission contract with the same majority of insurance solicitors like the plaintiff, and thus, it constitutes a standardized contract under Article 2 (1) of the Standardized Contracts Regulation Act.

The court below rejected the plaintiff's assertion that the plaintiff violated the duty to specify and explain the terms and conditions under the Act on the Regulation of Terms and Conditions, on the ground that it is reasonable to deem that the plaintiff was aware of the provisions related to the recovery of allowances in this case, and that the plaintiff violated the duty to explain and explain the terms and conditions under the Act on the Regulation of Terms and Conditions, on the ground that it is reasonable to deem that the plaintiff was aware of the provisions related to the recovery of allowances in this case, in light of the following: (a) the plaintiff's letter of confirmation or attached agreement that sufficient explanation was made about the insurance business guidelines, etc. of the defendant at the time of entering into the commissioning contract of this case; (b) the plaintiff appears to have received sufficient explanation about the provisions related to the recovery of allowances

Examining the reasoning of the judgment below in light of the aforementioned legal principles, the court below erred by misapprehending the legal principles as to the standardized contract terms and conditions under the Standardized Contracts Regulation Act, but it is just to accept the plaintiff's assertion that the defendant violated the obligation to clarify and explain the standardized contract terms and conditions under the Standardized Contracts Regulation Act. Thus, the court below's error in the above judgment did not affect the conclusion of the judgment.

2. In addition, the lower court determined that, inasmuch as the insurance company’s insurance policy does not provide for the type, details, etc. of the allowance to be paid or recovered to the insurance solicitor, the Defendant’s payment of allowances to the insurance solicitor and the amount to be recovered in any case would, in principle, be determined by private autonomy between the parties. In full view of various circumstances as indicated in its reasoning, the Defendant’s provision on quality assurance of the insurance business guidelines of this case cannot be deemed unfair and invalid.

In light of the relevant legal principles and records, the above determination by the court below is just and acceptable, and contrary to the allegations in the grounds of appeal, there were no errors by misapprehending the legal principles on the Regulation of Standardized Contracts Act.

3. Therefore, the appeal is 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 on the bench.

Justices Kim Shin (Presiding Justice)