[1] The validity of an insurance contract covering another person's death which was concluded without the written consent of the insured (negative)

[2] Whether it is against the good faith principle or the good faith principle to assert invalidation by a person who signed an insurance contract under the above [1] without the written consent of the insured (negative)

[3] Whether the written consent of the insured in an insurance contract under the above [1] should be made until the conclusion of the insurance contract (affirmative)

[1] The provisions of Article 731 (1) of the Commercial Act that 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

[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 by taking the death of another person as the condition of the so-called gambling contract without the consent of the victim, in addition to the risk of gambling insurance and the risk of murder of the insured. Thus, in violation of Article 731(1) of the Commercial Act, if a person who entered into an insurance contract covering another person's death as an insured event without the written consent of the insured refuses it on the ground that it is an exercise of a right contrary to the principle of good faith or the principle of good faith to assert the invalidity of the person's death by himself/herself without the consent of the insured in violation of Article 731(1) of the Commercial Act, it would result in the complete elimination of such legislative intent. Thus

[3] According to the provisions of Article 731 (1) of the Commercial Code, the time when the insured shall express his/her consent in writing in an insurance contract which covers the death of another person as an insured event is until the conclusion of the insurance contract.

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

[1] Supreme Court Decision 88Meu3367 delivered on November 28, 1989 (Gong1990, 130) Supreme Court Decision 91Da47109 delivered on November 24, 1992 (Gong193Sang, 216)

[Judgment of the court below]

Kant Life Insurance Co.

Seoul District Court Decision 96Na16659 delivered on July 9, 1996

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

The grounds of appeal by the attorney are examined.

1. Regarding ground of appeal No. 1

According to the reasoning of the judgment below, as to the defendant's assertion that the insurance contract of this case is null and void without the written consent of the insured at the time of conclusion of the contract, the court below determined that the insurance contract of this case does not take effect as to the whole including the remainder, which is indivisible with the contents of the death of the non-party who is the plaintiff's husband, since it did not obtain the written consent of the above non-party at the time of conclusion of the contract of this case including the death

The argument in the grounds of appeal is that the provision of Article 731 (1) of the Commercial Act is not a provision for protecting "victim" or "other person", and it is not a provision for the insurer, and that the defendant, the insurer, while collecting the insurance premium on the premise that the insurance contract in this case is valid, the defendant's assertion that the insurance contract in this case was invalid on the ground that there was no written consent of the insured only after the occurrence of the insurance accident, is an anti-social assertion in violation of the good faith

However, Article 731 (1) of the Commercial Act, which provides that an insurance contract which covers the death of another person as an insured accident shall obtain the written consent of the other person at the time of the conclusion of the insurance contract, shall be null and void as a mandatory law. The legislative intent 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 the condition of the so-called gambling contract without the consent of the victim in addition to the risk of gambling insurance and the risk of murder of the insured, and it is also interpreted that it is necessary to eliminate the risk of infringement on the public order and good morals without the consent of the victim. Thus, if the party who entered into the contract in violation of Article 731 (1) of the Commercial Act rejects it on the ground that it is an exercise of a right contrary to the principle of good faith or the principle of good faith, barring special circumstances, it would result in completely excluding the above legislative intent.

Therefore, the court below accepted the defendant's above assertion and rejected the plaintiff's claim of this case based on the premise that the insurance contract of this case is valid, and it is reasonable to do so, and there is no error of law by misunderstanding the legal principles as to the principle of good faith or the principle of good faith as alleged in the above ground of appeal.

2. Regarding ground of appeal No. 2

According to the reasoning of the judgment below, the court below determined that the insurance solicitor agreed to explain only the type and content of the insurance contract to the plaintiff at the time of entering into the insurance contract of this case between the plaintiff and the defendant and the insurance solicitor at his option and signed the name of the above non-party in the column of signature of the insured. Further, there is no evidence to acknowledge that the above non-party's written consent was given at the time of entering into the insurance contract of this case. Furthermore, since the insurance solicitor was delegated with the authority to prepare written consent from the above non-party and the insurance solicitor was again delegated with the above authority, the above non-party's written consent should be deemed to have been given at the time of entering into the insurance contract of this case. Further, there is no evidence to prove that the plaintiff entered into the insurance contract of this case with the above non-party's consent, and even if the plaintiff entered into the insurance contract of this case with the above non-party's consent, it cannot be viewed that the above non-party's consent was clear in light of the circumstance and content of the contract of this case's subscription.

3. Therefore, the appeal shall be dismissed and all costs of appeal shall be assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Jong-ho (Presiding Justice)