[1] The meaning of "reasons for refusal of subscription" under Article 638-2 (3) of the Commercial Code as a passive requirement for the insurer's liability for the insurance accident before acceptance, and the burden of proof (=insurer)

[2] In a case where the insurer is liable for an insurance accident before acceptance, whether the circumstance where the insurer did not notify the insurer of the occurrence of the accident constitutes “reasons for refusal of subscription” (negative), and whether the insurance contract is null and void on the ground that the occurrence of the insurance accident occurred at the time of the insurance contract (negative)

[3] Whether the amount of money calculated by the worker's fault ratio can be deducted from the employer's damages during the medical care compensation that a disaster worker received (negative)

[1] According to Article 638-2 (3) of the Commercial Code, where an insurer receives from a policyholder all or part of the amount equivalent to the premium, as well as an application for an insurance contract (where an insured worker of a personal insurance contract is required to undergo physical examination, when such examination is conducted), if an insured event specified in an insurance contract has occurred before accepting the application, the insurer shall be held liable for the insurance contract unless there is any reason to refuse the application. Here, the reason for refusing the application refers to the case where the insured ordinarily is under a dangerous condition or circumstance that cannot be taken over according to the objective insurance guidelines provided by the relevant insurance company regarding the type of insurance for which the subscription for the insurance contract has been made, and the insured bears the burden of proving the existence of the reason for refusing such an application.

[2] If the insurer’s liability under the insurance contract is acknowledged as the insurer’s failure to make an offer of the so-called insurance accident prior to the so-called acceptance is difficult, the circumstance that the insurer did not notify the insurer of the occurrence of the accident cannot be a ground to refuse the offer, and the insurance contract cannot be deemed null and void by Article 644 of the Commercial Act on the ground that the occurrence of the

[3] As to the medical care compensation under the Labor Standards Act, an employer is obligated to pay the full amount, barring special circumstances, and even if the employee was negligent, it cannot be deducted from the amount of compensation, and thus, it cannot be deducted from the amount of compensation. Therefore, the amount of money calculated according to the rate of negligence of the employee during the medical care compensation received by the affected employee shall not be deducted from

[1] Article 638-2(3) of the Commercial Act, Article 288 of the Civil Procedure Act / [2] Articles 638-2(3), 644, and 651 of the Commercial Act / [3] Articles 763, 396 of the Civil Act, Article 78 of the Labor Standards Act

[3] Supreme Court en banc Decision 81Meu351 Decided October 13, 1981 (Gong1981, 14438), Supreme Court Decision 94Da40543 Decided December 27, 1994 (Gong195Sang, 670)

Plaintiff

Heung-gu Fire Insurance Co., Ltd. (Law Firm Hyil Law, Attorney Lee Dong-ju, Counsel for the plaintiff-appellant)

Daejeon High Court Decision 2007Na13150 decided May 14, 2008

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

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

According to Article 638-2 (3) of the Commercial Act, where an insurer receives from a policyholder all or part of the amount equivalent to the premium (where an insured worker of a personal insurance contract is required to undergo physical examination, the time such examination is conducted), the insurer shall be liable for the occurrence of an insured event specified in the insurance contract before accepting the subscription unless there is any reason to refuse the subscription. Here, the reason to refuse the subscription refers to the occurrence of a dangerous condition or circumstance, which cannot be taken over according to the objective criteria for taking over the type of insurance provided by the relevant insurance company with respect to the type of the insurance contract, and the insured is ordinarily not an insured worker under the insurance contract. The burden of proving the existence of the reason to refuse such subscription lies on the insurer. In addition, if the insurer is liable under the insurance contract because there is no reason to refuse the subscription of the insurance contract for the so-called insured event prior to the acceptance, the insurer’s failure to notify the insurer thereof cannot be deemed to be null and void under Article 644 of the Commercial Act on the ground that the insured event already occurred at the time of the insurance contract.

According to the facts acknowledged by the court of first instance as cited by the court below and the records, the non-party corporation, which performed reinforced concrete construction work among the waterworks construction work in the Dong-gu Seoul Urban Development Project District, was justified on April 4, 2005, and the insurance period from January 20, 2005 to May 31, 2005, subscribed to the contract of domestic workers' accident compensation insurance (hereinafter "the insurance contract of this case"), which covers the user's liability with the non-party corporation and the prime contractor as the insured, and received insurance premium receipts from the defendant after paying the total amount of KRW 1,135,60 on April 13, 205. The plaintiff concluded an employment contract with the non-party corporation 1 and received vehicle control on the road at around 17:50 on the same day, and the defendant did not know that the non-party 2's accident of this case was in violation of the legal principles as the non-party 1's non-party 2's non-party 4 accident.

Furthermore, the judgment of the court below is just in light of the records that the statement of the above accident-free certificate alone cannot be deemed as an agreement between the defendant and the non-party corporation to exempt the defendant from the defendant's obligation to pay insurance proceeds with respect to the insurance accident that occurred between April 4, 2005 and April 14, 2005. There is no evidence to find that the non-party corporation received the accident-free certificate on the condition that it did not accept the insurance with respect to the accident that occurred within the retroactive period under the accident-free certificate, and even if the non-party corporation submitted the above accident-free certificate, it cannot be deemed that the plaintiff's claim based on the insurance contract of this case against the defendant who is the victim cannot be viewed as contrary to

In addition, the argument that the expression of intent or duty of disclosure by fraud was made only in the final appeal, and thus, it cannot be a legitimate ground for appeal.

2. Regarding ground of appeal No. 2

A. Where the victim was negligent in causing or expanding damage in a tort compensation case, it must be taken into account as a matter of course in determining the scope of liability for damages. However, fact-finding or determining the ratio of comparative negligence is within the exclusive authority of a fact-finding court unless it is deemed that it is considerably unreasonable in light of the principle of equity (see Supreme Court Decisions 2002Da43165, Nov. 26, 2002; 2004Da26805, Jan. 14, 2005, etc.).

The court below also held that the plaintiff, the victim of the accident of this case, was erroneous in failing to properly examine the movement of Postles in the course of performing duties in close vicinity to Postles, and maintained the judgment of the court of first instance which calculated the plaintiff's negligence ratio of 20%. In light of the above legal principles and records, the court below's finding of facts and its determination on the grounds for comparative negligence cannot be deemed to be considerably unreasonable in light of the principle of equity as it is within the acceptable scope. Thus, the court below's measures are not erroneous in violation of the rules of evidence or incomplete

B. As to the medical care compensation under the Labor Standards Act, the employer is obligated to pay the full amount, and even if there is any negligence on the part of the employee, it cannot be deducted from the amount of compensation, and thus, it cannot be deducted from the amount of compensation. Thus, the amount of money calculated by the worker's fault ratio among the medical care compensation received by the affected worker cannot be deducted from the amount of compensation by unjust enrichment (see Supreme Court en banc Decision 81Meu351 delivered on October 13, 198, Supreme Court Decision 94Da40543 delivered on December 27, 1994).

In the same purport, the court below is just in holding that the amount of medical care benefits should not be deducted from the medical care expenses if the victim claims only the remaining medical care expenses except the amount of medical care benefits, and further, the victim's unjust enrichment should not be deducted from the amount of compensation for losses. There is no error of law such as misunderstanding of legal principles as alleged in the grounds

C. The grounds of appeal shall be stated in the petition of appeal or in an independent document that is a statement of the grounds of appeal, and it shall not be invoked the contents of other documents. The court of final appeal may investigate and determine only to the extent of appeal filed by the grounds of final appeal. Thus, the grounds of final appeal shall specify the grounds of final appeal and explain specific and explicit reasons as to which part of the judgment below is in violation of the statutes (see, e.g., Supreme Court Decisions 91Da2278, Oct. 11, 1991; 97Da55126, Mar. 27, 1998; 2007Du23187, Jan. 24, 2008).

Of the grounds of appeal, the health expenses and consolation money portion in this case did not include the grounds of appeal in this case, and the grounds of appeal submitted by the defendant's attorney are stated as follows: "I cite any content alleged by the defendant insurance company in the original judgment as it is." This statement in the grounds of appeal is merely invoked the content of another document, and it does not state specific and explicit grounds as to what portion of the original judgment is in violation of the law, and therefore, it cannot be included in the legitimate grounds of appeal.

3. Conclusion

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 Young-ran (Presiding Justice)