[1] The validity of an insurance contract concluded with another person's death as an insured accident without the insured's written consent (negative)

[2] Whether it is against the principle of trust and good faith for a person who, without the written consent of the insured, concludes an insurance contract which covers the death of another person as an insured accident (negative)

[3] The case holding that an insurance solicitor is liable for employer under Article 158 of the Insurance Business Act, in case where, at the time of entering into an insurance contract which covers the death of another person as an insurance accident, the insurance solicitor did not notify the insurance purchaser of the fact that he should obtain the consent of the other person in writing and did not sign the insurance policyholder's signature at will, and the head of the business office knew the fact and neglected to do so, thereby the above insurance contract becomes null and void

[1] The provisions of Article 731 (1) of the Commercial Act that Article 731 (1) of the Commercial Act provides that the death of another person shall be obtained from the written consent of the other person when the insurance contract is concluded as an insured event shall be null and void

[2] The legislative intent of Article 731(1) of the Commercial Act is to exclude the risk of infringement of public order and good morals, as well as the risk of gambling insurance and the risk of murder of the insured, by taking the death of another person as the condition for the so-called speculative contract without the consent of the victim. Thus, if a party who entered into a contract in violation of Article 731(1) of the Commercial Act denies the claim for invalidation on the ground that it is the exercise of the right to exercise the right against the principle of trust and good faith, the above legislative intent may be entirely dismissed, and barring special circumstances, such assertion cannot be deemed as contrary to the principle of trust and good faith.

[3] The case holding that the insurance solicitor and the head of the office of the insurance solicitor explain to the policyholder the fact that the insurance solicitor should obtain the consent of the other party's written agreement in the insurance contract which covers the death of the other party as an insured accident and, despite the duty of care to take measures to conclude the insurance contract with the written consent of the other party, if the insurance solicitor knew of the above fact at the time of signing the insurance contract which covers the death of the other party and did not explain it to the policyholder, and the other party consented to the conclusion of the insurance contract with the insured as the insured party's consent, the insurance solicitor's arbitrary signature was replaced by the insurance solicitor's consent column, and the head of the office of the above insurance solicitor and the head of the office of the office of the office of the insurance solicitor should inform the insurance solicitor of the above fact with the consent of the above other party's signature, although the insurance solicitor did not report that the insurance solicitor should obtain the consent of the above other party's consent on behalf of the above other party, if the insurance solicitor suffered

[1] Article 731 (1) of the Commercial Act / [2] Article 2 of the Civil Act, Article 731 (1) of the Commercial Act / [3] Article 158 of the Insurance Business Act, Article 731 (1) of the Commercial Act

[1] [2] Supreme Court Decision 96Da37084 delivered on November 22, 1996 (Gong1997Sang, 36) / [1] Supreme Court Decision 88Meu3367 delivered on November 28, 1989 (Gong1990, 130) Supreme Court Decision 91Da47109 delivered on November 24, 1992 (Gong1993Sang, 216) / [3] Supreme Court Decision 97Da26425 delivered on November 14, 197 (Gong197Ha, 3814)

[Defendant-Appellee] The Head of Si/Gun/Gu Office

Dongbu Fire Marine Insurance Co., Ltd. (Attorneys Jeon Jae-in et al., Counsel for the plaintiff-appellant)

Daegu District Court Decision 96Na29339 delivered on July 8, 1997

1. The part of the lower judgment against the Plaintiff, which orders payment under the following, shall be revoked.

The defendant shall pay to the plaintiff 153,00,000 won with an annual interest rate of 5 percent from August 6, 1996 to April 30, 1998, and 25 percent per annum from the next day to the date of full payment.

2. The plaintiff's remaining appeal is dismissed.

3. The costs of the lawsuit shall be ten minutes per each of the first and second instances, and one of them shall be borne by the plaintiff and the other by the defendant.

4. The part on which money is paid under paragraph (1) may be provisionally executed.

The defendant shall pay to the plaintiff the amount of KRW 170,00,000 with five percent per annum from August 6, 1996 to the date of the decision of the court below, and twenty-five percent per annum from the next day to the date of the full payment.

1. Basic facts

The following facts may be acknowledged in full view of the statements in Gap evidence Nos. 1, 2, 5-1, 2, 3, and 4-1, 3, and 4-1, and the whole purport of the oral argument with the testimony of non-party 1 of the original court, and there is no counter-proof otherwise.

A. On July 12, 1996, the Plaintiff’s insurance period (1) between the Defendant Company and July 16, 1996, from July 12, 1996 to July 16, 12, 200; insurance amount is KRW 140,00,000 upon the death of a traffic accident; KRW 215,00 per month for insurance premium; the insured shall be written on the non-party type; the beneficiary of the death benefit; the beneficiary of the insurance accident shall be the Plaintiff’s death or injury; the insurance period is from July 16:00 to July 16:00, 201; the insurance amount is KRW 30,00,000 upon the death of the deceased; the insurance premium is KRW 56,20,000 upon the death of the deceased; and each of the above insured’s legal beneficiaries’ testimony or injury shall be considered as the beneficiary’s testimony of each of the above insured’s death or injury; the insured’s death insurance contract appears to be the beneficiary’s testimony of the first beneficiary.

B. On August 5, 1996, around 06:10 on the 1996 letter, the above letter was killed due to a traffic accident while operating the car No. 7lu8743 on the national highways of 50m in Macheon-si from the fish hold station to the 50m-si Kimcheon-si.

2. The insurance money claim shall be sold;

A. The plaintiff's assertion and the defendant's defense

(1) The plaintiff asserts that the defendant is liable to pay the insurance proceeds to the plaintiff, a beneficiary of death insurance, since the above sentence, the insured of the insurance contract of this case, died of a traffic accident at the above date. The defendant argues that the above insurance contract is null and void because there was no written consent, which is the insured.

(2) Therefore, in full view of the above evidence and evidence Nos. 1 and 2 as well as the whole purport of the pleading, the plaintiff cannot be acknowledged as having paid KRW 272,20 (215,600,000 + KRW 56,620,000 + KRW 56,620,000) with each insurance premium of this case on July 12, 1996, by making an offer of the insurance contract of this case with the above non-party 1, together with the above non-party 1, and the consent of the insured was obtained from the above non-party 1, the above non-party 1, the insured's consent was made. The defendant company (name omitted) signed the insurance contract of this case with the signature of the above deceased under the permission of the non-party 2, the head of the business office of the above non-party 2.

(3) Article 731(1) of the Commercial Act provides that an insurance contract which covers the death of another person as an insured event shall obtain the written consent of the other person at the time of the conclusion of the insurance contract, and this provision shall also apply mutatis mutandis to an accident insurance pursuant to Article 739 of the Commercial Act, which is a mandatory provision for the protection of the insured, and the insurance contract in violation of this provision shall be null and void. According to the above facts, the insurance contract in this case is a mixed insurance with life insurance and accident insurance, and the policyholder and the insured are different, so there should be a written consent of the insured. However, the insurance contract in this case shall be null and void, unless there is any special reason,

B. Judgment on the plaintiff's second defense

The plaintiff asserts that the plaintiff's assertion on the invalidity of the insurance contract of this case is contrary to the principle of trust and good faith for the reason that the above non-party 1 neglected to forge the signature of the above written paper, the insured, and did not obtain the written consent of the insured, as most of the insurance solicitors of the defendant company, without requiring the plaintiff to obtain written consent from the plaintiff.

Therefore, in the conclusion of the insurance contract of this case, the above non-party 1 recommended the plaintiff and substituted the signature of the above paper as mentioned above. However, the provision of Article 731 (1) of the Commercial Act which provides that the death of another person must obtain the consent of the other person in writing at the time of entering into the insurance contract which covers the death of another person as an insured accident shall be null and void as a mandatory law. The legislative purport of the above provision is to exclude the risk of infringement on the public order and good morals by taking the death of the other person as a condition for the so-called speculative contract without the consent of the victim, in addition to the risk of gambling insurance and the risk of murder of the insured, as well as the risk of death of the other person, from taking the death of the other person as a condition for the so-called speculative contract without the consent of the victim. Thus, if it is rejected on the ground that the party who entered into the contract in violation of Article 731 (1) of the Commercial Act is in violation of the principle of trust and good faith, it cannot be viewed as violating the above legislative purport.

3. Determination on a claim for the payment of insurance money under an agreement

The plaintiff asserts that even if the contract of this case between the plaintiff and the defendant is null and void without the written consent of the insured, since the defendant company expressed its intention to pay the insurance money to the bona fide contractor who did not obtain written consent through the Korea Non-life insurance association belonging to the defendant company, the defendant is liable to pay the insurance money to the plaintiff by

Therefore, in full view of the fact-finding results of the fact-finding on the life insurance association of the court below, the Korea Life Insurance Association, and the Insurance Supervisory Board, the director of the Insurance Supervisory Board re-verifications the existing policyholders' written consent at the time of concluding the insurance contract against the existing life insurance company and the insured on December 10, 1996 in order to solve anxietys and incompetences of policyholders of the life insurance due to the Supreme Court Decision 96Da37084 delivered on November 22, 1996, and delivers the guidelines to the effect that the insurance company should not unfairly inflict unfair damage on bona fide contractors such as refusing to pay insurance money or nullifyinging the insurance money on the ground that there was no formal written consent of the insured on the existing contract, the life insurance association at the meeting of the president of the Life Insurance Association shall be liable for all insurance contracts concluded on December 6, 1996. However, the plaintiff's assertion that the above insurance association, which is the member of the defendant, did not have any reason to recognize otherwise.

4. Determination on claims based on negligence in concluding a contract

The plaintiff does not stipulate the negligence in concluding a contract under Article 535 of the Civil Code only for the person who suffered damage due to a contract with an original impossible performance, but also for the other party's liability to compensate for the other party's loss due to a cause attributable to him in the process of formation of the contract. If the contract becomes null and void due to a violation of the mandatory law or public order, the contract shall be trusted and shall be compensated for the other party's loss. The above non-party 1 and the above non-party 2, the head of the above business office, as an insurance solicitor of the defendant company, are experts related to the insurance, who are well aware of the fact that he should obtain the consent of the above deceased's written contract with the above deceased at the time of conclusion of the insurance contract, and the above non-party 1, the above non-party 2, before the above non-party 2, signed the above deceased's written consent in front of the contract, and thus, the insurance contract in this case becomes null and void, the defendant asserts that there is a negligence in the conclusion of the insurance contract.

Therefore, in order to claim damages due to negligence in concluding a contract as stipulated in Article 535 of the Civil Code, the plaintiff's insurance contract which covers the death of another person, such as the insurance contract of this case, as an insurance contract of this case, shall be bona fide and without fault as to the fact that the plaintiff did not know the fact that he/she should obtain consent in writing at the time of concluding the insurance contract (Article 535 (2) of the Civil Code), and as acknowledged later, the plaintiff's above assertion is without merit.

5. Determination on the assertion of employer liability under Article 158 of the Insurance Business Act

(a) Occurrence of liability for damages;

In full view of the evidence as above and evidence Nos. 6 and 7-1 to 4, 8 and 9-1 to 6-6 of each of the above statements, and witness testimony at the trial, the plaintiff employs 7 employees in charge of follow-up repair and repair of the elevator and parking machine installed at the place where the new machine manufacturing factory is located, and the employees have made the same insurance contract as in this case with their consent to the whole employees in preparation for the damages to be borne by the plaintiff or the above non-party company in excess of the insurance money under the Industrial Accident Compensation Insurance Act in the course of performing their duties, and the plaintiff was employed by the above deceased on July 12, 1996, and the above deceased did not obtain the above consent of the deceased from the above non-party 1 to the above non-party 1 on behalf of the deceased, and it did not obtain any consent from the above non-party 1 to the above insurance solicitor's signature at the time of signing the insurance contract with the above non-party 1's insurance solicitor's signature.

According to the above facts, the above non-party 1 and the non-party 2, the head of the business office of the defendant company, who are the insurance solicitor of the defendant company, should obtain the written consent of the above deceased, and explain to the plaintiff as the insured, and have the duty of care to take measures to conclude the insurance contract with the written consent of the above deceased. However, the above non-party 1 did not know the above facts at the time of entering into the insurance contract of this case and did not inform the plaintiff, and he agreed to enter into the insurance contract of this case with himself as the insured. The above non-party 2 knew of the above facts, and had the above non-party 1's signature on the part of the above deceased. Thus, the above non-party 1 should be instructed by the above non-party 1 to obtain the consent of the above deceased's signature, but it did not report that the above non-party 1 signed the above deceased's consent on behalf of the above deceased, thereby causing losses to the plaintiff, which caused losses to the plaintiff by failing to obtain the consent of the insured.

B. Limitation on liability

On the other hand, comprehensively taking account of the whole purport of the argument in the above evidence, it is recognized that the plaintiff was negligent in concluding the insurance contract of this case without knowing the fact that the plaintiff did not properly read the matters to be known, such as the insurance contract of this case, while having experience in concluding several insurance contracts covering the death of another person as an insured accident, such as the insurance contract of this case, and even at the time of concluding the insurance contract of this case, the plaintiff did not know that he should obtain the consent in writing. Such negligence of the plaintiff was caused by the occurrence and expansion of the damage of this case. Therefore, it is reasonable to consider it in calculating the damages to be compensated by the defendant

C. Scope of damages

Furthermore, as to the amount of damages that the Defendant is liable for damages, the amount is KRW 170,000,000, which is the amount of damages for which the Plaintiff is unable to receive insurance money due to the invalidity of the insurance contract of this case on the grounds that the insured did not obtain written consent from the insured ( KRW 140,000,000,000, which is the amount of work injury insurance + KRW 30,000,000, which is the amount of family voluntary driver insurance) taking into account the Plaintiff’s negligence into account ( KRW 153,00,000,000).

6. Accordingly, the defendant is obligated to pay to the plaintiff the amount of 153,00,000 won and the amount equivalent to five percent per annum from August 6, 1996, which is the day following the death day of the deceased, who is an insured incident of the insurance contract of this case sought by the plaintiff, to the day after April 30, 1998, which is the day after the decision of the court below, and twenty percent per annum from the day after the day after the day when the decision of the court below is rendered. Thus, the plaintiff's claim of this case is accepted within the above recognized limit and the remaining amount is dismissed as there is no reason. Since the judgment of the court below is unfair, it is ordered to pay it to the defendant by cancelling the part against the plaintiff within the above recognized limit, and the remaining appeal of the plaintiff is dismissed as there is no reason, and with respect to the payment of the costs of lawsuit by the provisional execution, Article 96, Article 92, Article 89 of the Civil Procedure Act and Article 19 of the Civil Procedure Act shall be applied as a sentence of provisional execution.

Judges Lee Woo-man (Presiding Judge) et al.