[1] Whether the State operating an insurance business pursuant to Article 3 of the Postal Savings and Insurance Act is liable to compensate for the damage inflicted upon its employees in the course of conducting the insurance solicitation pursuant to Article 102(1) of the Insurance Business Act (affirmative)

[2] Whether an insurance solicitor bears the duty of explanation on the requirements such as the insured's written consent when concluding an insurance contract of another person's death as an insured event (affirmative), and in case where an insurance solicitor's failure to fulfill such duty of explanation becomes null and void and thus the policyholder is not paid the insurance money, whether the insurer is liable for damages under Article 102 (1) of the Insurance Business Act (affirmative)

[1] In light of the purpose of Article 1(1) of the Insurance Business Act and the legislative intent of Article 102(1) of the same Act, the State operating an insurance business pursuant to Article 3 of the Postal Savings and Insurance Act shall be deemed to be liable for damages inflicted on the policyholder by its employees in the course of soliciting insurance, like the “person operating an insurance business with a license from the State” as well as the “person operating an insurance business with a license from the State”.

[2] In concluding an insurance contract which covers the death of another person as an insured event, the insurance solicitor has a duty of care to make the policyholder obtain the opportunity to satisfy the requirements, such as the written consent of the insured, and to take measures so that the insurance contract can be concluded in force by providing the policyholder with an opportunity to satisfy the requirements. Nevertheless, if the insurance solicitor becomes null and void due to the defect of the above requirements, and the insurance purchaser is not entitled to receive the insurance money despite the occurrence of the insured events, the insurer is liable to compensate the policyholder for damages equivalent to the amount of the insurance money pursuant to Article 102(1)

[1] Article 1, Article 2 subparag. 5, Article 102(1) of the Insurance Business Act, Article 3 of the Postal Savings and Insurance Act / [2] Articles 638-3(1) and 731(1) of the Commercial Act, Article 102(1) of the Insurance Business Act

[2] Supreme Court Decision 98Da23690 delivered on November 27, 1998 (Gong1999Sang, 39) Supreme Court Decision 98Da54830, 54847 delivered on April 27, 199 (Gong1999Sang, 1036) Supreme Court Decision 2003Da60259 delivered on April 27, 2006 (Gong2006Sang, 883)

Plaintiff (Law Firm Chungcheong, Attorneys Park Yong-young et al., Counsel for the plaintiff-appellant)

Republic of Korea (Law Firm Seol, Attorneys Appointment-soo et al., Counsel for defendant-appellant)

Seoul Central District Court Decision 2006Na13383 Decided April 6, 2007

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

1. After compiling the adopted evidence, the court below found facts as stated in its decision, and judged that the death of Nonparty 1 constitutes an accident, which is an accident, as an accident, as an accident, in light of all the circumstances revealed the facts. In light of the records, the court below's fact-finding and decision are just and acceptable, and it cannot be said that there is an error in violation of the rules of evidence as argued in the Grounds for Appeal.

2. Article 1 of the Insurance Business Act provides that "the purpose of this Act is to contribute to the sound development of insurance business and the balanced development of the national economy by promoting the sound operation of an insurance business operator and protecting rights and interests of policyholders, the insured and other interested persons." Article 2 subparagraph 5 of the same Act provides that "the term "insurance company" means a person who carries on the insurance business after obtaining a license under the provisions of Article 4." The main text of Article 102 (1) provides that "the insurance company shall be liable to compensate policyholders for losses suffered by its officers, employees, insurance solicitors or insurance agencies when conducting the insurance solicitation." Meanwhile, Article 3 of the Postal Savings and Insurance Act provides that "the State shall administer postal savings business and the postal insurance business, and the Minister of Information and Communication shall take charge of such business," and Article 102 (1) of the above Insurance Business Act provides that "the insurance company with respect to insurance solicitation caused by an act of an executive officer or employee of the insurance company, and Article 102 (5) of the same Act provides that "the State shall also be liable for damages caused by the insurance company's strict act and its strict liability."

Unlike this, we cannot accept the allegation in the grounds of appeal that Article 102 (1) of the Insurance Business Act cannot be applied to the State operating postal insurance business because the State is not an insurance company that obtained an insurance business license under Article 4 of the Insurance Business Act.

3. In concluding an insurance contract which covers the death of another person as an insured event, the insurance solicitor has a duty of care to make the policyholder enter into an effective insurance contract by providing the policyholder with an opportunity to satisfy the requirements such as the written consent of the insured by explaining in detail and in detail the requirements of the insured. Nevertheless, the insurance contract becomes null and void due to defects in the above requirements, and if the policyholder becomes unable to receive the insurance proceeds despite the occurrence of the insured events, the insurer is liable to compensate the policyholder for damages equivalent to the insurance proceeds pursuant to Article 102(1) of the Insurance Business Act (see Supreme Court Decisions 98Da23690, Nov. 27, 1998; 2003Da60259, Apr. 27, 2006, etc.).

The court below, based on the adopted evidence, acknowledged the facts as stated in its reasoning. After soliciting Nonparty 2, who is an insurance solicitor belonging to the defendant, as the insured, to conclude the insurance contract of this case where the death of the insured is an insured accident, and without explaining the fact that the insurance contract is invalidated if the consent of Nonparty 1, who is the insured, is not obtained by the written consent of the insured, the court below determined that the defendant is liable to compensate the plaintiff who is the policyholder in the course of soliciting the insurance pursuant to the main sentence of Article 102(1) of the Insurance Business Act, as the insurer, and the defendant is also liable for compensating the plaintiff who is the insured in the course of soliciting the insurance contracts of this case. On the other hand, the plaintiff was negligent in finding out the conditions to be effective in entering into the insurance contract of this case, and in failing to obtain the written consent of Nonparty 1, who was negligent in obtaining such a consent, and the plaintiff's negligence ratio is 40% in light of the process of entering into the insurance contract of this case.

In light of the above legal principles and records, the fact-finding and judgment of the court below are just and acceptable, and there is no error in the misapprehension of legal principles as to comparative negligence or incomplete deliberation, contrary to the allegations in the grounds of appeal.

4. According to the records, even if the insurance contract of this case was valid at the court below, the plaintiff did not notify the defendant that the non-party 1, the insured, was suffering from medical treatment for a long period of urology and high blood pressure at the time of concluding the insurance contract of this case, and the defendant could terminate the insurance contract of this case on the ground of the plaintiff's breach of duty of disclosure. Thus, the plaintiff was not entitled to receive the insurance proceeds of this case. Thus, although the plaintiff asserted that "the insurance contract of this case cannot be deemed to have suffered from losses for which the insurance proceeds cannot be received from the wind which becomes null and void due to defects in the requirements of the insured's written consent, the court below

However, Article 35(2) of the Postal Savings and Insurance Act provides that "in entering into an insurance contract, where the policyholder or the insured fails to notify important matters as prescribed by the Ordinance of the Ministry of Information and Communication due to intentional or gross negligence, or makes false notification, a postal service organization may terminate the insurance contract only within one month from the date of becoming aware of such fact, and within five years from the effective date of the insurance contract." According to the records, the defendant's assertion that "the insured cannot be deemed to have died from brain strokes caused by high blood pressure, and it cannot be paid insurance proceeds because there is no evidence of death," and the defendant's assertion that the plaintiff's violation of the duty of disclosure was not known within one month from the date of becoming aware of such fact, and the defendant's assertion that the plaintiff's violation of the duty of disclosure was not known as the result of the plaintiff's violation of the duty of disclosure. Thus, the defendant's assertion that the plaintiff's violation of the duty of disclosure was not known to the plaintiff within one month prior to the expiration date of the contract.

5. Damage claim due to a tort is due simultaneously with the occurrence of damage (see Supreme Court Decision 64Da1102 delivered on October 21, 1966, Supreme Court Decision 9Da50071 delivered on December 28, 199, etc.).

The lower court determined that the Defendant is liable to pay the Plaintiff damages for delay from the day following the delivery date of the copy of the complaint of this case sought by the Plaintiff, on the premise that the Plaintiff’s damage claim against the Defendant was due for the payment date of the insurance money of this case where the Plaintiff suffered damages due to the failure of the insured’s written consent that the insurance contract becomes invalid due to the failure of the insured’s written consent.

In light of the above legal principles, the judgment of the court below is correct, and there is no error of law in the misapprehension of legal principles as to the starting point of the liability for delay of performance.

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

Justices Kim Ji-hyung (Presiding Justice)