[1] The meaning of "in the conduct of solicitation" under Article 158 (1) of the former Insurance Business Act concerning the insurer's liability to compensate for damages to the insurer entrusting insurance solicitation

[2] The case holding that an insurer shall be held liable for damages under Article 158 of the former Insurance Business Act in case where an insurance solicitor received an insurance premium from the wife upon his request and used part of it for personal purposes

[1] Article 158 of the former Insurance Business Act (amended by Act No. 6891 of May 29, 2003) which provides for an insurance solicitor's liability to compensate for damages to a policyholder in the course of soliciting insurance contracts shall take precedence over Article 756 of the Civil Code, which is a general provision on the employer's liability for compensation. Thus, the term "in conducting soliciting" under Article 158 (1) of the former Insurance Business Act shall include any act which appears to be closely related to, or similar to, the original soliciting act of an insurance solicitor from an objective perspective when observing the soliciting act externally, even if the soliciting act is not itself, it shall also be seen as falling under the scope of the soliciting act.

[2] In a case where an insurance solicitor received premiums from his wife upon the request to buy insurance, and used some of them for personal purposes, the case holding that the insurance solicitor is liable for damages of the insurer under Article 158 of the former Insurance Business Act (amended by Act No. 6891 of May 29, 2003) on the ground that the insurance solicitor's act of receiving premiums is in considerable relation to his insurance solicitation, and it appears as being within the scope of his soliciting act

[1] Article 158 (see current Article 102) of the former Insurance Business Act (amended by Act No. 6891 of May 29, 2003), Article 756 of the Civil Act / [2] Article 158 (see current Article 102) of the former Insurance Business Act (amended by Act No. 6891 of May 29, 2003)

[1] Supreme Court Decision 94Da19617 delivered on November 22, 1994 (Gong1995Sang, 68), Supreme Court Decision 94Da19600 delivered on July 14, 1995 (Gong1995Ha, 2773), Supreme Court Decision 98Da14191 delivered on June 23, 1998 (Gong1998Ha, 1956)

Plaintiff (Seoul High Court General Law Firm, Attorneys Kim Un-sik et al., Counsel for the plaintiff-appellant)

Samsung Life Insurance Co., Ltd. (Law Firm Chungcheong, Attorney Lee Jong-young, Counsel for defendant-appellant)

Seoul High Court Decision 2003Na10720 decided July 9, 2004

The part of the lower judgment regarding the embezzlement of insurance premiums is reversed, and that part of the case is remanded to the Seoul High Court. The remainder of the appeal is dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the embezzlement of KRW 60 million of insurance premium

Article 158 of the former Insurance Business Act (amended by Act No. 6891 of May 29, 2003) which provides for an insurer’s liability to compensate for damages to a policyholder when soliciting insurance, applies preferentially to Article 756 of the Civil Act (amended by Act No. 6891 of May 29, 200), which is a general provision on employer’s liability to compensate (see Supreme Court Decisions 94Da19617, Nov. 22, 1994; 98Da14191, Jun. 23, 1998; 98Da14191, Jun. 23, 1998). The phrase “in soliciting” under Article 158(1) of the former Insurance Business Act refers to “in performing soliciting insurance,” which means that even if an insurance solicitor’s solicitation act is not itself, the act should be objectively considered to include the act closely related to, or similar to, the act within the scope of solicitation.

However, according to the facts and records established by the court below, the non-party 1, who is the plaintiff's husband and the defendant, received KRW 100 million under the name of the plaintiff's insurance premium around January 5, 199, and then purchased the above KRW 700,000 on behalf of the plaintiff 2 insurance premium, KRW 29,47,00 as the above KRW 30,000 as the insurance premium of the above KRW 40,000 as the insurance premium of the above 40,000 as the insurance premium of the above 100,000,000 won as the above 70,000 won as the insurance premium of the above 100,000 won as the insurance premium of the above 40,000 won as the insurance premium of the above 100,000 won as the insurance premium of the above 100,000 won as the insurance premium of the above 100,000 won as the insurance premium of the plaintiff.

In light of the above circumstances, even if the plaintiff requested the non-party 1, who is an insurance solicitor, to buy insurance, delivered KRW 100 million as a lump sum without specifying the insurance product, or the plaintiff did not receive insurance premium receipts from the non-party 1, etc., in light of the circumstances stated in the judgment of the court below, it is reasonable to view that the above receipt of insurance money by the non-party 1 is considerably related to the insurance solicitor's insurance solicitation, and it is reasonable to view that the above act is an act within the scope of solicitation, and thus, it is reasonable to assume that the defendant is liable for damages to the plaintiff, who is the insurance solicitor, in accordance with Article 158 (1) of the former Insurance Business Act.

Nevertheless, the court below held that the act of receiving 100 million won by Nonparty 1 was merely an act as an agent or a deceased person, and it is difficult to view it as an act of soliciting insurance as an insurance solicitor by the defendant merely because it is acknowledged as stated in its reasoning, such as the fact that the plaintiff specified the amount of insurance products and the purchase price of insurance to Nonparty 1 and did not deliver the above KRW 100 million in the house without any particular reference to the insurance products. At the time, the plaintiff did not prepare an insurance contract of each of the of the of the of the of the of the of the of the of the of this case and did not receive a receipt of insurance premium from Nonparty 1, the process of concluding each of the of the of the of the insurance contracts of this case, the process of receiving the above money, and the status relationship between the plaintiff, Nonparty 1 and Nonparty 2. The court below erred in the misapprehension of legal principles as to the relation to soliciting insurance in Article 158 of the former Insurance Business Act

2. As to the existence of justifiable reasons in the expression agency

The court below, after compiling the evidence adopted in its decision, found facts as stated in its decision. The non-party 1, as the plaintiff's husband, entered into each insurance contract of this case with the reasons mentioned above, submitted an insurance policy and all necessary documents, such as the submission of the insurance policy at the time of termination of the insurance contract of this case (in addition, the plaintiff himself/herself submitted a certificate of personal seal impression issued in three times) at the time of the termination of the insurance contract of this case, and submitted all necessary documents to the defendant at the time of the termination of the insurance contract of this case. The remaining documents, except the insurance policy, are submitted to the defendant in the case where the insurance policy is evidence and is merely a non-life insurance certificate, and cannot submit the insurance policy because it is merely a non-life insurance certificate, the court below determined that the court below's application for the loan of this case and the receipt of the loan of this case or the cancellation refund money of this case can be received on behalf of the plaintiff. In light of the records, the court below's judgment is justified in finding that the defendant applied for the insurance contract of this case.

The court below did not err by misunderstanding the facts against the rules of evidence or by misapprehending the legal principles as to the establishment of an expression agency as alleged in the grounds of appeal. The ground of appeal on this part is without merit.

3. Conclusion

Therefore, the part of the judgment of the court below regarding the embezzlement of the above insurance premium is reversed, and that part of the case is remanded to the court below for a new trial and determination. The remaining appeal by the plaintiff is dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Shin Hyun-chul (Presiding Justice)