[1] The purport of Article 158 (1) of the Insurance Business Act

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

[3] In a case where, at the time of concluding an insurance contract which covers the death of another person as an insured accident, an insurance solicitor knew of the fact that the insurance solicitor obtained the consent of the insured in writing from the policyholder and did not notify it to the policyholder, and the signature was replaced at will by the consent column of the insured, and the head of the business office was also aware of the fact and thus invalidated the insurance contract, the case holding that the insurance company is liable for damages under Article 158(1)

[1] The provisions of Article 158 (1) of the Insurance Business Act have significance in protecting the benefit of the policyholder and protecting the sound growth of the insurance business at the same time by imposing strict liability on the insurer for the loss inflicted on the policyholder with respect to the solicitation of insurance, and by imposing liability on the insurer for the loss caused by the act of an officer or employee of the insurer, and by imposing liability on the insurer for the loss caused by the act of an insurance solicitor

[2] An insurance contract which covers the death of another person as an insured event is in violation of Article 731 (1) of the Commercial Act, which is a mandatory law, without obtaining the consent of another person as the insured at the time of conclusion of the insurance contract, and thus becomes null

[3] The case recognizing liability for damages under Article 158 (1) of the Insurance Business Act to an insurance company on the ground that there is proximate causal relation between the above error committed by the insurance solicitor and the head of the business office while soliciting the insurance and the loss of the insured and the damage caused by the policyholder's failure to receive the insurance money, despite the fact that the insurance solicitor had the duty of care to take measures to conclude the insurance contract with the written consent of the insured by explaining to the policyholder that the insurance solicitor's death would be invalidated without the written consent of the insured person when the insurance solicitor and the head of the business office concluded the insurance contract as an insurance expert on the insurance business for the death of another person as an insurance accident, and the policyholder knew that the insurance solicitor knew the fact itself and instead made the signature of the insured person in the column of the consent of the insured, and neglected it even though he knew of the fact that the insurance solicitor was liable for the payment of the insurance money by the insurance company without the written consent of the insured, in case where the insurance solicitor and the head of the business office did not receive the insurance money.

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

[1] Supreme Court Decision 97Da26425 delivered on November 14, 1997 (Gong1997Ha, 3814), Supreme Court Decision 97Da26418 delivered on November 14, 1997 / [2] Supreme Court Decision 88Da33367 delivered on November 28, 1989 (Gong1990, 130) Supreme Court Decision 91Da47109 delivered on November 24, 1992 (Gong193Sang, 216) (Gong196Da37084 delivered on November 222, 196)

[Defendant-Appellant] Plaintiff (Law Firm Bail, Counsel for defendant-appellant)

Dongbu Fire Marine Insurance Co., Ltd. (Attorney Gyeong-soo et al., Counsel for the plaintiff-appellant)

Daegu High Court Decision 97Na5153 delivered on April 30, 1998

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

We examine the grounds of appeal.

1. Article 158(1) of the Insurance Business Act provides that "the insurer shall be liable for any loss inflicted on the policyholder by its executives, employees, insurance solicitors or insurance agencies in the course of soliciting: Provided, That this shall not apply in cases of insurance solicitors or insurance agencies, if the insurer who entrusted the soliciting has paid due attention to the entrustment of the relevant insurance solicitors or insurance agencies, and has made efforts to prevent the loss inflicted on the policyholder in the course of soliciting them." This provision provides that "The insurer shall be liable for the loss inflicted on the policyholder in relation to soliciting insurance, and if the loss was caused by the act of an officer or employee of the insurer in relation to soliciting insurance, the insurer shall be liable for strict liability, and if the loss was caused by the act of an insurance solicitor or insurance agency, the insurer shall be liable for the loss corresponding to the strict liability, thereby protecting the interests of the policyholder and promoting the insurance business at the same time (see, e.g., Supreme Court Decisions 97Da26425, Nov. 14, 1997; 97Da264

According to the facts duly established by the court below, an insurance contract which covers the death of a third party as an insured event as in the insurance contract of this case violates Article 731 (1) of the Commercial Act, which is a mandatory law, without obtaining the written consent of the third party as the insured at the time of conclusion of the insurance contract, and thus its insurance contract becomes null and void. Thus, although the non-party 1 and the head of the business office of the defendant, as an insurance solicitor, have a duty of care to explain the purport of the insurance contract to the plaintiff as an insurance policyholder, and to take measures to enter into the insurance contract by obtaining the written consent of the insured, the non-party 1 and the non-party 2, as the insurance solicitor of the defendant, have the duty of care to make the plaintiff enter into the insurance contract by explaining the purport of the contract and obtaining the written consent of the insured as the insurance contractor, the non-party 1 knew the same fact, and the non-party 2 knew that the plaintiff was liable for the payment of the insurance proceeds without the written consent of the non-party 3.

The decision of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as to negligence in the conclusion of an insurance contract under Article 158 of the Insurance Business Act.

2. In light of the records, the court below erred in concluding the instant insurance contract without knowing the fact that the plaintiff did not properly read the matters to be known in the subscription form despite the experience of concluding several insurance contracts covering the death of another person, such as the instant insurance contract, such as the instant insurance contract, as well as the fact that the plaintiff did not know the fact that the consent should be obtained in writing at the time of concluding the insurance contract. The plaintiff's error also did not seem to be remarkably unreasonable in light of the principle of equity in finding that the ratio of negligence was 10% because it was the cause of the instant damage, and therefore, it does not appear that the judgment below erred

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

Justices Cho Chang-hun (Presiding Justice)