2017Da245804 Insurance proceeds

Do Accounting Firm

Law Firm LLC et al., Counsel for defendant-appellant

[Defendant-Appellee] Plaintiff 1 and 2 others

Case Non-Life Insurance Co., Ltd.

Law Firm LLC et al., Counsel for defendant-appellant

Kang-gu et al., Counsel for defendant-appellee

Seoul High Court Decision 2016Na2065917 Decided June 23, 2017

September 3, 2020

All appeals are dismissed.

Costs of appeal shall be borne by each party.

The grounds of appeal are examined.

1. As to whether it constitutes an internationally accepted insurance clause, the lower court rejected the Defendant’s assertion that Article 7 of the Act on the Regulation of Terms and Conditions does not apply to the insurance clause (hereinafter referred to as “instant insurance clause”) applicable to the insurance clause (hereinafter referred to as “instant insurance clause”) signed by the Plaintiff and the Defendant, as it constitutes an internationally accepted insurance clause under Article 15 of the Act on the Regulation of Terms and Conditions (hereinafter referred to as “the Act on the Regulation of Terms and Conditions”) and Article 3 subparag. 2 of the Enforcement Decree of the same Act.

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court did not err in its judgment by failing to exhaust all necessary deliberations as to whether the instant insurance clause constitutes an internationally accepted insurance clause, contrary to what is alleged in the Defendant’s grounds of appeal, by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the interpretation and application of relevant

2. As to whether the insurance clause of this case is null and void in violation of the relevant statutes

A. Terms and conditions of the instant insurance money payment

According to the reasoning of the judgment below and the records, the insurance clause of this case provides that "the insured shall be compensated on behalf of the insured for all damages caused by negligence, mistake, omission, etc. while the insured was engaged in specialized accounting business for another person," and the insured shall be liable for compensation by negligence, mistake, or omission during the insurance period, and the claim for compensation shall be notified in writing to the company during the insurance period." In addition, "the insurance condition" provides that "the claim for compensation was filed during the insurance period and the claim for compensation was made during the insurance period, and shall be applied to negligence, mistake, omission in the course of the insured's specialized accounting business during the insurance period (hereinafter omitted)". In other words, according to the insurance clause of this case, the defendant is liable to pay the insurance money to the plaintiff only when the insured is the third party within the insurance period, and the plaintiff has notified the defendant in writing, who is the insurer, in relation to this claim for compensation (hereinafter "electronic" of this case, and the plaintiff shall be notified in writing during the insurance period."

1) A) In examining whether the terms and conditions are unfair under the Act on the Regulation of Terms and Conditions, it shall be determined not by separately removing only the provisions in question, but by comprehensively examining the contents of the entire terms and conditions, by taking into account ordinary transaction practices in the field of transaction in which the terms and conditions are used, characteristics of goods or services subject to transaction, etc. Furthermore, the court’s specific content control of the terms and conditions established in advance by an enterpriser based on the Act on the Regulation of Terms and Conditions is a preliminary issue to determine the rights and obligations of the parties in an individual contractual relationship, and examines the validity of the terms and conditions. Thus, the court should consider the specific circumstances of the parties in the course of controlling unfair practices that unfairly disadvantage the customers (see, e.g., Supreme Court Decision 2012Da17547, Jul. 25, 2013).

B) Vocational liability insurance provides that the insured is subject to a claim for damages from a third party for a judicial or extra-judicial compensation within the insurance period, namely, a claim for damages. The insurer may clarify the scope and timing of liability for compensation by recognizing the insured incident based on the case of a claim for damages against the third party within the insurance period, and by adjusting or confirming the scope of payment of the insurance money by conducting defensive activities other than litigation or litigation against the third party’s claim for damages.

In a professional liability insurance contract that determines an insurance accident in accordance with the criteria for claim for damages, the insured’s duty to notify is different from the existing liability insurance policy. In order to clearly define the scope and timing of liability for compensation in a professional liability insurance contract, the insured must notify the insured of the fact of claim for damages, which was made against the insured within the insurance period. As such, the insured’s written notification clause functions not as a matter of simply expanding the insurer’s liability for compensation in the event of additional damages caused by the breach, but as a premise for the obligation to pay the insurance money. In the absence of a written notification from the insured within the insurance period, the insurer is not liable for the payment

C) As one of the specialized professional liability insurance contracts, the insurer shall compensate for damages in cases where the insurer, the insured, incurred damages due to negligence, mistake, omission, etc. while performing specialized accounting duties and is legally liable. The provisions of the instant claim for damages, which determine the insurance accident based on the claim for damages under the insurance clauses of this case, are reasonable, and the provisions of the instant written notice demanding that the insured, within the insurance period, notify the insurer of the fact that the insured, in writing, received the claim for damages from a third party,

Therefore, all of the terms and conditions of insurance payment stipulated in the insurance contract of this case cannot be deemed as limiting the insurer's damages without reasonable grounds. Thus, it cannot be deemed as null and void pursuant to Article 7 (2) of the Act on the Regulation of Terms

2) The lower court deemed that the claim for damages of this case did not violate Article 7 subparag. 2 of the Act on the Regulation of Terms and Conditions with respect to the claim for damages of this case. However, with respect to the written notification clause of this case, the lower court determined that it was null and void as it limited the scope of damages of the enterpriser or exceeded the risk that the enterpriser should bear to the customer without any justifiable reason.

Of the judgment of the court below, the part concerning the claim for damages of this case concerning the claim for damages of this case did not err by misapprehending the legal principles as to Article 7 of the Act on the Regulation of Terms and Conditions, but with regard to the part concerning the written notification clause of this case, it erred by misapprehending the legal principles as to Article 7 of the Act on the Regulation of Terms and Conditions. However, as seen earlier, it is reasonable in conclusion as the plaintiff was unable to assert it as the content of the insurance contract of this case because it was impossible for the plaintiff to properly perform his duty to explain the written notification clause of this case. Such error does not affect the conclusion

The lower court determined that the instant damages claim provision was not disadvantageous to the insured on the grounds of its stated reasoning, such as the provision for specifying the scope of the insurance accidents under the instant insurance contract.

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court did not err by misapprehending the legal doctrine on Article 663 of the Commercial Act, contrary to what is alleged in the Plaintiff’s grounds of appeal.

A. As to the claim for damages of this case

For the reasons indicated in its holding, the lower court rejected the Plaintiff’s assertion of violation of the duty of explanation on the ground that it is difficult to view that the insurer is obligated to provide specific and detailed explanation and explanation as to the above provision, on the ground that the need to determine the terms and conditions of payment of insurance proceeds and its reasonableness is recognized, and that the content is sufficiently anticipated from the standpoint of the insured.

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court did not err in its judgment by misapprehending the legal doctrine on the duty to explain terms and conditions, contrary to what is alleged in the Plaintiff’s grounds of appeal.

1) When concluding an insurance contract, an insurer is obligated to provide a specific and detailed statement and explanation of the important contents of the insurance contract as stated in the insurance contract. Therefore, unless it is a general and common part in the transaction, so it is sufficiently anticipated that a policyholder may not provide a separate explanation, or it is merely an additional provision or an additional provision, the insurer may not claim the content of the insurance contract as the content of the insurance contract, unless it concludes an insurance contract in violation of the duty to specify and explain such insurance contract (see, e.g., Supreme Court Decisions 2004Da18903, Aug. 25, 2005; 2016Da27200, Jan. 17, 2019).

2) On the grounds delineated below, the lower court deemed that the Defendant could not assert the instant written notification provision as the content of the instant insurance contract.

A) The instant written notification clause, contrary to Article 657 of the Commercial Act that provides that the insurer is not liable to compensate for the increased loss if the loss is increased due to neglecting the obligation to notify the occurrence of the insurance accident, is likely to suffer disadvantages which the insured would not be entitled to receive, and thus, is an important content of the insurance contract for which the insurer bears the obligation to specify and explain specific and detailed matters.

B) However, it is difficult to view that the Plaintiff was well aware of the content of the instant written notice provision merely because the Plaintiff received an estimate of the insurance premium from another insurance company before entering into the instant insurance contract, and there is no evidence to support that the Defendant fulfilled its duty to explain and explain the content of the instant written notice provision at the time of entering into the instant insurance contract.

3) Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the record, the lower court did not err in its judgment by misapprehending the legal doctrine on the duty to specify and explain terms and conditions, as otherwise alleged in the Defendant’

4. As to the assertion that the damages amount was paid to South Aluminum Co., Ltd.

As indicated in the judgment of the court below, since the insurance period of the insurance contract of this case, such as South Aluminium, Gyeongnam Co., Ltd., and Gyeongnam Co., Ltd., had expired, and this did not satisfy the claim for damages of this case against the insured within the insurance period, the defendant is not liable for the payment of insurance proceeds accordingly. Therefore, other grounds of appeal, such as the plaintiff's payment of damages, are without merit, without further review.

5. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against each appellant. It is so decided as per Disposition by the assent of all participating Justices on the bench.

The presiding judge shall keep the record of the Justice