Plaintiff 1 and two others (Attorney Seo-sik et al., Counsel for the plaintiff-appellant)

Samsung Life Insurance Co., Ltd. (Attorney Kim Young-hoon, Counsel for defendant-appellant)

Sungyang Industrial Co., Ltd.

September 25, 2003

Seoul District Court Decision 2002Gahap41188 Delivered on December 4, 2002

1. The plaintiffs' appeal and the insurer's ancillary claim on the employer's liability as additional insurer are dismissed.

2. The appeal costs and the costs of the preliminary claim added in the trial are assessed against the plaintiffs.

The judgment of the first instance shall be revoked. The defendant shall pay to the plaintiff 1 the amount of 52,585,714 won, the plaintiff 2, and the above amount of 35,057,143 won and the above amount of 35,057,143 won each year from the date of service of the copy of the complaint to the date of full payment (the plaintiff added the conjunctive claim as an insurer under Article 158 (1) of the Insurance Business Act at the trial).

1. Quotation of judgment of the first instance;

The reasoning for this Court’s explanation is that “2.. judgment” as stated in Section 4(4) of the first instance court’s judgment is “3. . . . . . . Seeking ratification of the Plaintiffs added in the first instance court, violation of the principle of trust and good faith, etc., and the conjunctive claim for employer’s liability as an insurer under Article 158(1) of the Insurance Business Act and the judgment thereon are the same as the entry of the reasoning for the first instance court’s judgment, and thus, it shall be accepted in accordance with Article 420 of the Civil Procedure Act.

A. As to the assertion of ratification

The plaintiffs asserted that the defendant joining the defendant's insurance contract of this case where the death of the insured worker as an insured accident was concluded between the defendant and the defendant, and that the officer of the accounting division of the defendant joining the defendant's arbitrarily prepared a written consent on the conclusion of the insurance contract without the delegation of the insured worker or his representative, and that the plaintiffs, the representative of the insured worker or the heir of the non-party deceased, confirmed the written consent of the above accounting division's employees after the fact that the insurance contract

First of all, in an insurance contract which covers the death of another person as an insured accident, the time when the insured is required to express his/her consent in writing until the conclusion of the insurance contract. Thus, even if the insurance contract is concluded without the consent of the insured and the insured or his/her heir confirms it after the occurrence of the insured event, the insurance contract cannot be retroactively effective.

In addition, there is no evidence to prove that the insured worker or his representative, who is the insured of the insurance contract of this case, has ratified the written consent of the above employee of the above accounting division after the fact, and the insurance contract of this case, which is a group insurance, does not concurrently exist several insurance contracts as much as the number of the insured workers, but is a single insurance contract that makes the majority of the workers who are members of the organization as the insured. In light of the fact that the plaintiffs who are the inheritors of the non-party deceased, who are only one of the multiple insured, cannot be ratified separately from the part regarding written consent of the non-party deceased among the insurance contract

B. As to the assertion of violation of the principle of good faith or the principle of good faith

The plaintiffs, when the insurance solicitor belonging to the defendant entered into the insurance contract of this case, which is a group insurance with more than 700 workers who are the insured between the defendant joining the defendant and the defendant, confirmed whether there are provisions regarding the subscription of group insurance by the collective agreement or rules of employment of the defendant joining the defendant, and confirmed whether there is any provision regarding the subscription of group insurance by the rules, such as the collective agreement or rules of employment of the defendant joining the defendant, and neglected to do so despite the duty of care to obtain legitimate written consent of the insured workers or their representatives, and neglected to prepare only the "written consent of the insurance association joining the insurance policy" where there is no evidence to recognize their position and representation, and accordingly, collected the insurance premium on the premise that the insurance contract of this case was effective. Thus, the defendant's assertion that the insurance contract of this case is null and void on the grounds that there is no legitimate consent of the insured workers or the defendant.

However, the legislative intent of Article 731(1) of the Commercial Act, which requires the written consent of the insured in an insurance contract which covers the death of another person as an insured accident, is to eliminate moral hazard, such as infringement of public order and morality, which may arise from taking the death of another person as the condition of so-called speculative contract without individual or collective consent of the insured, or harm to the insured, and thus, if the person who entered into an insurance contract which covers the death of another person as an insured accident without any written consent of the insured in violation of the rules on group insurance and without any other written consent of the insured, refuses the conclusion of the contract on the ground that it violates the principle of trust and good faith or the principle of good faith, unless there are special circumstances, it cannot be deemed that such assertion goes against the principle of trust and good faith or the principle of good faith, and it cannot be deemed that there is no reason to recognize the existence of the above written consent of the insured's insurance solicitor or the insured's arbitrary consent to the conclusion of the insurance contract without any specific reasons for the defendant's written consent or its employees's written consent.

C. As to the preliminary claim seeking employer liability as an insurer under the Insurance Business Act

(1) The plaintiffs' assertion

In the first instance trial, if the insurance contract of this case is deemed null and void on the grounds that there is no policy holder’s collective insurance or written consent of the insured workers, the Plaintiffs were made as group insurance, the Plaintiffs asserted that the insurance solicitor belonging to the Defendant is liable to compensate the Plaintiffs for damages equivalent to the insurance amount under Article 158(1) of the Insurance Business Act, as an insurer who entrusted insurance solicitation to the insurance solicitor belonging to the Defendant, for the damages of the Plaintiffs under the provision of Article 158(1) of the Insurance Business Act, by neglecting the duty of care to obtain legitimate written consent of the insured workers or their representatives, and failing to confirm the existence of the organization insurance agreement or the written consent of the insured.

(2) Determination

According to the provisions of Article 158(1) of the Insurance Business Act, an insurer is liable for damages caused by an insurance solicitor, etc. to a policyholder in the course of soliciting insurance, and this is significant in order to protect the benefit of the policyholder and to promote the sound growth of the insurance business at the same time on the premise that a tort against a policyholder such as an insurance solicitor is established, as a special provision on the employer liability provisions of Article 756 of the Civil Act.

On the other hand, with respect to a group insurance contract which covers the death of another person as an insured event, without obtaining a written consent from another person who is the insured under the absence of the regulations on group insurance at the time of concluding the insurance contract, the insurance contract is null and void in violation of the provisions of Articles 731(1) and 735-3 of the Commercial Act. As such, an insurance solicitor has the duty of care to explain to a policyholder the agreement on group insurance or the written consent of the insured in detail, to make the policyholder obtain a written consent from the insured and to take measures to make the effective insurance contract available for the policyholder to obtain a written consent of the insured. If the insurance solicitor is unable to receive the insurance money even if the insurance accident occurred due

Therefore, it is difficult to view that the contract of this case, which is a group insurance policyholder, was made in the process of entering into the insurance contract of this case, as seen above, as long as the contract of this case, which is a group insurance policyholder, was signed and sealed by three members of the employee who are designated as the representative of the insured workers from the defendant joining the defendant as the policyholder at the request of the insurance solicitor belonging to the defendant, and the contract of this case was submitted with the "written consent of the Trade Union Council" signed and sealed by three members of the defendant, unless there are special circumstances to suspect the authenticity of the contract of this case or the existence of three members' power of representation, it is difficult to consider that the above consent was duly made to the insurance solicitor belonging to the defendant, and that there was a duty of care to examine or confirm whether there was a legitimate power of representation against the three members of the workers as the representative of the workers, and there is no evidence to acknowledge that there was any violation of the duty of care in soliciting the insurance contract of this case. Furthermore, it is not the right of the plaintiffs directly asserted by the plaintiffs of the defendant.

Therefore, the plaintiffs' preliminary claim seeking employer's liability against the defendant as an insurance company under the Insurance Business Act is not justified.

2. Conclusion

Therefore, the plaintiffs' primary claim among the claims of this case is dismissed as it is without merit, and the conjunctive claim is dismissed as illegal. Since the judgment of the court of first instance is justified with this conclusion, the plaintiffs' appeal is dismissed as it is without merit, and the conjunctive claim seeking employer's liability as an insurer under the Insurance Business Act added at the trial of the court of first instance is dismissed as it is without merit. It is so decided as per Disposition.

Judges Lee Jong-sung (Presiding Judge)