The case holding that even if a child's death accident does not constitute the damage subject to compensation stipulated in the provisions on child injury damage under an insurance contract, and even if it falls under the damage subject to family compensation, the part which caused the death accident of a minor under the age of 15 in violation of Article 731 (1) of the Commercial Act and Article 732

The case holding that Article 732 of the Commercial Act, which provides that a death accident of a child shall not be covered by a child injury clause under an insurance contract, and even if it is covered by domestic affairs, since Article 731 (1) and 15 of the Commercial Act, which requires a written consent of the other person at the time of entering into an insurance contract which covers the death of the other person as an insured event, provides that the death accident of a minor under 15 years of age shall be null and void because Article 732 of the Commercial Act provides that the death accident of a minor

[1] Articles 731(1) and 732 of the Commercial Act, Article 105 of the Civil Act

Dongyang Fire Marine Insurance Co., Ltd. (Attorney Han-chul, Counsel for the plaintiff-appellant)

A

Suwon District Court Decision 2001Da5442, 7080 delivered on October 19, 2001

Supreme Court Decision 2002Da43141, 43158 Decided September 11, 2002

1. The defendant (Counterclaim plaintiff)'s appeal is dismissed.

2. The costs of appeal are assessed against the Defendant-Counterclaim Plaintiff.

1. Purport of claim

(a)The main office is confirmed on August 3, 200, by virtue of the comprehensive family insurance contract in the 21st century concluded between the Plaintiff (Counterclaim Defendant; hereinafter referred to as the “Plaintiff”) and the Defendant (Counterclaim Plaintiff; hereinafter referred to as the “Defendant”), that the Plaintiff’s liability to pay the insurance proceeds to the Defendant due to any of the following accidents occurred at a bathing beach located at the time of Non-Party B’s inside of the Taean-gunan Island located.

(b)Counterclaim: the plaintiff shall pay to the defendant 20,100,000 won a sum of twenty-five percent (25%) per annum from September 18, 200 to the full payment;

2. Purport of appeal

The main lawsuit: The part against the defendant in the original judgment shall be revoked, and the plaintiff's main claim corresponding to the revoked part shall be dismissed.

Counterclaim: Revocation of the part against the defendant falling under the following order of payment in the original judgment. The plaintiff shall pay to the defendant the amount of KRW 20,000,000 and 25% interest per annum from September 19, 200 to the date of full payment.

1. Basic facts

The reasoning of this court's reasoning is as follows. (1) The "child injury medical expenses" in 3 4 Myeon 3 of the judgment of the court below is dismissed as "child injury damage", and (2) the general medical expenses (Articles 29 through 36) for children's injury are the same as that of the judgment of the court below except for the case where the general medical expenses (Articles 29 through 36) for children are used as follows. Thus, it is cited as it is in accordance with Article 390 of the Civil Procedure Act.

(2) A child injury damage clause (Articles 29 through 36)

(1) A company (Article 29) shall, when its children have sustained any bodily injury by an ordinary injury and an accident resulting from a traffic injury during the insurance period, compensate for such injury, and the term "general injury" means the damage resulting from such injury when its children have sustained any bodily injury by an accident resulting from a sudden and rapid external accident inside or outside the Republic of Korea.

(2) Article 30 provides that the injury incurred by the suicide of a child, the execution of a punishment by a child, together with other reasons, shall not be compensated for.

(3) (Article 31) Where a child has suffered from an injury resulting from a general injury as provided for in Article 29 above, and his/her own result has lost physical part or has lost his/her function permanently within 180 days from the date of the accident, or has lost his/her function permanently, the company shall pay the child as an insurance benefit for the disability resulting from a general injury by multiplying the payment rate prescribed in the subparagraphs of attached Table 2 by one (10,000,000) of the purchase amount of the insurance for the disability

(4) (Article 34) A company shall pay, during the insurance period, expenses for medical rooms up to one time the purchase amount of children's medical expenses (five hundred thousand won) for each accident, when the company suffered from an injury resulting from a general injury as provided for in the above Article 29 and received medical treatment as a result of its direct performance.

2. The principal lawsuit and the counterclaim shall be deemed simultaneously; and

The reasoning for this part of the court below is as follows. (1) The accident of Non-party B is not applicable to the last 4 pages of the judgment of the court below. Since the above insurance contract aims to compensate for the damage caused by the injury to a child if the child sustained the injury, the above provision does not constitute compensation for the damage, and pursuant to Article 732 of the Commercial Act, the insurance contract which covers the death of a child under 15 years of age is null and void. The non-party B, who was aware of the accident of this case, added "the non-party B, who was under 10 years of age at the time of the accident, was under 5 years of age at the time of the accident" and "the non-party B, who was under 3 years of age, has the duty to pay" to the defendant, and even if it is not so, the accident of the non-party B, who was subject to the above insurance contract, refers to "when the child of the insured person suffers bodily injury within or outside the Republic of Korea, and it does not constitute an insurance clause of Article 3010% of the above general insurance contract.

3. Matters to be judged additionally;

In addition, as to whether the death of Non-party B constitutes a case of general injury among the damages covered by Article 30 of the General Terms and Conditions of Insurance Contract in this case, each of the evidence mentioned above and each of the evidence Nos. 12 and 13 evidence Nos. 1 and 2 stated above. In addition, all of the insurance contract and insurance clauses of this case stipulate only the injury not caused by the death of the child, but also the injury caused by the life of the child. Article 31 of the General Terms and Conditions of the insurance contract of this case provides for the payment of insurance money when the injury was caused by the injury, but does not stipulate the payment of insurance money in case of death. Thus, it is difficult to view that the injury caused by the suicide and execution of punishment of the insured child caused by the death of the child of this case without compensation under Article 30 of the General Terms and Conditions of Insurance Contract of this case constitutes a case of injury caused by the rate of 10% of payment rate under Article 31 of the above Terms and Conditions of Insurance Contract. In case of injury caused by the death of the deceased, only the above payment of insurance money can not be made directly or otherwise.

In addition, even if the death accident of Non-party B caused the death of another person as an insured accident falls under the "damage for Compensation" stipulated in the insurance contract of this case, the insurance contract covering the death of another person requires the consent of another person in writing at the time of entering into the insurance contract as above, and Article 731 (1) of the Commercial Act provides that the insurance contract covering the death of a person under 15 years of age or mentally or physically weak person as an insured accident shall be null and void. This is because it is difficult to expect the consent of the person under 15 years of age due to the lack of mental capacity, such as the person under 15 years of age, and there is a risk of sacrifice for the acquisition of insurance money, and thus, it is mandatory to protect the person from the danger of abuse of the death insurance contract of this case to protect the person under 15 years of age as an adult's family member, which expanded the scope of the insured person's insurance contract as seen in the insurance contract of this case, and thus, it cannot be deemed null and void as an insured person under 2715 years of the Commercial Act.

4. Conclusion

Therefore, the plaintiff is obligated to pay 5% per annum from September 19, 2000, the following day after the claim for the above emergency cost insurance money of KRW 100,000 to October 19, 200, and 25% per annum from the next day to the day after the decision of the court below is rendered. Thus, the plaintiff's claim for the main lawsuit is justified only for the portion exceeding the above amount of the award, and the defendant's claim for the counterclaim is accepted within the above scope of recognition. The plaintiff's claim for the main lawsuit and the remainder of the defendant's counterclaim are accepted within the above scope of recognition. The plaintiff's claim for the main lawsuit and the plaintiff's other counterclaim are dismissed in its entirety due to the lack of justifiable grounds. Accordingly, the defendant's appeal is dismissed as it is so decided as per Disposition.

Judges Kim Jin-jin (Presiding Judge)