207Confirmation of Non-existence of Obligation 1318

Pfire Insurance Co., Ltd.

Law Firm Dongi, Counsel for the defendant-appellant

Attorney Kim Chungcheong-hee, and Kim Jong-il

D.(61years, South Korea)

Attorney Jeong-ho et al., Counsel for the defendant

January 8, 2009

January 22, 2009

1. In relation to the death of December 6, 2006 and the Plaintiff’s non-distribution comprehensive insurance contract concluded on September 27, 2005 between the Plaintiff and the Defendant, it is confirmed that there is no obligation to pay the Plaintiff’s insurance money to the Defendant based on the non-distribution comprehensive insurance contract concluded on September 27, 2005.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order of the Gu office.

1. Basic facts

The following facts are not disputed between the parties, or can be acknowledged by comprehensively taking into account the whole purport of arguments in each of the statements in Gap evidence 1, evidence 1, evidence 2, evidence 2-1, evidence 3-2, evidence 5, 6, 7, 12, and 13, evidence 14-1, 2, and evidence 15 through 18.

A. Conclusion of the instant insurance contract

1) On September 27, 2005, the Plaintiff and the Defendant’s wife A (hereinafter “the Deceased”) entered into a non-dividend comprehensive insurance contract in attached Form XX (hereinafter “instant insurance contract”) with the Defendant as the insured. Around that time, the Defendant paid the first insurance premium.

2) The terms and conditions of the instant insurance contract stipulate as follows with respect to the insured’s duty of disclosure under the Commercial Act.

(2) The contractor, the insured, or their agents are bound to inform the facts that they are aware of the questions asked in the subscription form at the time of the subscription.

Article 26 (Effect of Violation of Obligation to Notify) The Company may terminate the contract regardless of the occurrence of damages, in the following cases:

1. Where the contractor, the insured, or his/her agent violates the provisions of Article 24 by intention or gross negligence and the duty falls under important matters;

(4) If the termination of a contract pursuant to paragraph (1) 1 is made after the occurrence of loss, the company shall not compensate for the loss, and it shall be notified in writing to the contractor of the reason that the obligation prior to the contract constitutes an important matter as well as the fact of the breach of the duty to notify prior to the contract, along with the phrase "it may raise an objection if there is an opposing evidence." In addition, in this case, it shall pay a larger amount of refund upon the cancellation of the contract

(5) When it is proved that the damage was not caused by the facts falling under paragraph (1), the compensation shall be made with the exception of paragraphs (4) and (5).

B. Occurrence of the instant insurance accident

On December 6, 2006, the deceased complained of the dynasium and received emergency treatment, and transferred the dynasium to the emergency room affiliated with the K University Hospital to the emergency room and received hospitalized treatment. On the 8th day of the same month, around 04:28, the deceased died due to infection (in-house infection) where the cause of the preceding death is unknown (in-house infection), synasium infection (in-house infection), synassis (in-house infection), synassis (in-house infection), and dynassis (in-

On December 18, 2006, the Defendant filed a claim against the Plaintiff for the payment of the insurance money stipulated in the instant insurance contract, on the ground of the occurrence of the above insurance accident, for the payment of the insurance money stipulated in the instant insurance contract on the ground of the special clause on the security for death of disease, the special clause on the security for expenses for hospitalization of disease

D. On February 23, 2007, the Plaintiff notified the Defendant that the instant insurance contract was terminated and that it was impossible to pay the insurance money on the ground that the Plaintiff violated the duty of disclosure under Article 24 of the General Terms and Conditions of the instant insurance contract.

2. The parties' assertion

The plaintiff asserted that the insurance contract of this case was terminated on the ground of the defendant's violation of the above duty of disclosure, and that the insurance accident of this case occurred due to chronic chronic disease of alcohol, which is the disease of the deceased, before the conclusion of the insurance contract of this case, from May 14, 2002 to June 1 of the same year, the plaintiff did not exist since it was diagnosed as acute extractingitis, chronic infection, local, acutely, and acutely ill-dead infection and was hospitalized for 19 days.

In regard to this, the defendant asserts that Article 4 (4) of the duty to notify before entering into the contract of this case (A No. 4) was not written by the deceased on May 14, 2002 because the deceased did not indicate the name of disease diagnosed on or around May 14, 2002, and that it did not violate the duty of disclosure. Moreover, since acute dypumpitis, which is the cause of the insurance accident of this case, does not have a direct causal relationship with the infection or the blood transfusion, the plaintiff's termination of the insurance contract of this case does not have any reason and therefore

3. Determination

A. Whether the duty of disclosure is violated

1) According to the main text of Article 651 of the Commercial Act, if the policyholder or the insured fails to notify material facts intentionally or by gross negligence at the time of the insurance contract or provides that the insurer may terminate the contract within one month from the date of becoming aware of such fact, and within three years from the date of the conclusion of the contract. "material facts" under Article 651 of the Commercial Act, which are the standard for determining the contents of the insurance contract, such as the occurrence of the insured events and the commencement rate of liability to the insurer at the time of the insurance contract, or the addition of premium or special exemption clause, if objectively known of such fact, it refers to the fact-finding problem, which has no choice but to change depending on the type of insurance, and the insurer must objectively observe and determine in light of the technology of the insurance, and the insurer's question in writing falls under important matters in the insurance contract (see, e.g., Article 651-2 of the Commercial Act).

2) In light of the above, Gap evidence 3-2, Gap evidence 4, 8, 9, Gap evidence 14-1, 2, and Gap evidence 15-18, and the purport of arguments as a result of fact-finding with respect to S Hospital Head, B Hospital Head, and K University Hospital Head of this Court, the deceased, upon entering into the insurance contract of this case between the plaintiff on September 27, 2005, prepared a questionnaire on the duty to notify the contract before the contract of this case (Evidence A No. 4) attached to the insurance contract of this case within the last five years, after being examined by a doctor, after being examined, after being examined, after being examined, after being examined, after being examined, after being examined, or after being treated for not less than 7 days, or after being tested for not less than 30 days or after being tested for treatment or after being tested for not less than 30 days, the plaintiff concluded the insurance contract of this case with respect to the above water level 1, 200 days prior to the conclusion of the insurance contract of this case.

"Important matters", and it would be a violation of the duty of disclosure if the deceased was asked about these matters at the time of the conclusion of the insurance contract in this case and did not notify it.

B. Whether there exists a causal relationship between the breach of duty of disclosure and the occurrence of insurance accident

1) In entering into an insurance contract, when it is proved that the violation of the duty of disclosure did not affect the occurrence of the insurance accident, that is, when it was proved that the insurance policyholder was not informed of the occurrence of the insurance accident or that the occurrence of the insurance accident was not caused by the false notification, the insurer cannot terminate the insurance contract on the ground of the above misrepresentation under the proviso of Article 655 of the Commercial Act. The insurer is not obliged to prove the existence of the occurrence of the insurance accident and the existence of the causation. However, if there is room to see the existence of the occurrence of the insurance accident in violation of the duty of disclosure, the insurer's right to terminate the insurance contract on the ground of the violation of the duty of disclosure should not be restricted (see, e.g., Supreme Court Decisions 2004Da31814, 31821, Sept. 23, 2004; 97Da3089, Oct. 28,

2) In order to ensure that there is no causation between the violation of the duty of disclosure and the occurrence of the insured accident by the policyholder, the defendant, as the policyholder, should not actively prove that the insured accident in the instant case was done regardless of acute dypitis, chronic dypitis, acute dypitis, and acute dypitis, which are the past forces of the deceased. However, it is insufficient to recognize it solely based on the fact inquiry conducted on April 15, 2008, with the content that the direct causal relationship between acute dyparitis and the death of the deceased is very low, and there is no other evidence to prove it otherwise.

Rather, in light of the purport of the argument as to Gap's evidence Nos. 9 through 12 and the president of the Korean Medical Association on December 10, 2008, the deceased was hospitalized in the S Hospital by complaining of her clothes after drinking alcohol around May 14, 2002. At the time, S Hospital diagnosed the deceased's disease due to acute dystrophism, chronic dystrophism, local dysism, etc.; medical specialists and the Korean Medical Association confirming whether the deceased's disease was recorded in S Hospital's medical records at the time of hospitalization. The defendant's opinion that there was an unreasonable inter-functional disorder between alcohol disease at the S Hospital at the time of hospitalization and that there was no chronic dystrophism of the deceased, and that there was no chronic dystrophism that caused the death's chronic dystrophism, and the defendant continued to suffer dystrophism in the immediately preceding dystrophal disease.

4. Conclusion

Therefore, since the insurance contract of this case is deemed to have been lawfully terminated by the plaintiff's notice of termination, there is no obligation to pay insurance money under the insurance contract of this case against the defendant, and as long as the defendant contests this issue, the plaintiff has a profit to seek confirmation. Therefore, the plaintiff's claim of this case is justified and it is so decided as per Disposition.

The presiding judge, senior judge and senior judge;

Judges Bo Jae-cheon

Judges Lao Young-young