[1] Where an insurer concludes an insurance contract in violation of the duty to specify and explain the terms of the insurance contract, whether the insurer can assert the contents of the insurance contract as the content of the insurance contract (negative)

[2] Whether the insurer has the duty to specify and explain the terms and conditions of the insurance contract, even if the contents of the insurance contract can be sufficiently predicted without any separate explanation or are already stipulated by the law (negative)

[3] The case holding that the insurance clause stipulating the duty to notify the transfer of an insured automobile is not subject to the insurer's individual duty to explain and explain

[1] Generally, in concluding an insurance contract, an insurer and a person engaged in the conclusion or solicitation of an insurance contract are obligated to specify and explain the important contents of the insurance contract, such as the content of the insurance contract, the system of premium rates, and changes in the entries in the written subscription for the insurance contract, which are contained in the terms and conditions of the insurance contract. Therefore, when the insurer concludes an insurance contract in violation of such duty to specify and explain the terms and conditions of the insurance contract, it cannot be asserted

[2] Even if the terms and conditions are defined as a general and common terms and conditions, if a policyholder could have sufficiently predicted them without any separate explanation, or if it is merely a matter that has already been determined by the laws and regulations, it shall not be deemed that the insurer has the duty to specify and explain such matters.

[3] The case holding that the insurance clause stipulating the duty to notify the transfer of an insured motor vehicle is not subject to the insurer's individual duty to explain and explain in light of the fact that the transactional general public could have sufficiently anticipated without an individual explanation of the insurer

[1] Article 638-3 (1) of the Commercial Act, Article 3 of the Regulation of Standardized Contracts Act / [2] Article 638-3 (1) of the Commercial Act, Article 3 of the Regulation of Standardized Contracts Act / [3] Article 638-3 (1) of the Commercial Act, Article 3 of the Regulation of Standardized Contracts Act

[1] Supreme Court Decision 97Da4494 delivered on September 26, 1997 (Gong1997Ha, 3227) Supreme Court Decision 2001Da14917, 14924 delivered on September 18, 2001 (Gong2001Ha, 2243) Supreme Court Decision 2005Da38713, 38720 delivered on October 28, 2005 / [2] Supreme Court Decision 98Da32564 Delivered on November 27, 1998 (Gong199Sang, 41). Supreme Court Decision 2003Da7302 delivered on April 27, 2004 (Gong204, 875)

Japanese Fire and Marine Insurance Co., Ltd. (Law Firm ice, Attorneys Kim Young-hwan et al., Counsel for the plaintiff-appellant)

Defendant 1 and one other

Incheon District Court Decision 2006Na5031 Decided November 24, 2006

The judgment below is reversed, and the case is remanded to the Incheon District Court Panel Division.

The grounds of appeal are examined.

1. Based on the evidence of its employment, Defendant 1 entered into a comprehensive automobile insurance contract for family security business operations (hereinafter “instant insurance contract”) with the same Defendant as the insured with respect to the instant automobile owned by the Plaintiff, who is an insurance company, from May 12, 2004 to May 12, 2005, and Defendant 1 transferred the instant automobile to Defendant 2 around January 2005 without changing the registered name of the instant automobile and caused the instant traffic accident on May 6, 2005. The terms and conditions of the instant insurance contract include the Plaintiff’s duty to inform the Plaintiff of the terms and conditions that “where the policyholder or the insured transfers the insured automobile during the insurance period, the rights and obligations of the policyholder and the insured arising from the instant insurance contract will not be succeeded to the assignee of the insured automobile. However, if the insurance company notified the assignee of the intention to transfer this right and obligations in writing and requested approval, the Plaintiff did not have any obligation to explain the terms and conditions of the instant insurance contract to the Plaintiff, and the Plaintiff did not accept the said insurance contract.

2. However, we cannot agree with the judgment of the court below for the following reasons.

In general, the insurer and the persons engaged in the conclusion or solicitation of insurance contracts are obliged to specify and explain the important contents of the insurance contract, such as the content of the insurance contract, the insurance premium rate system, changes in the entries in the insurance subscription form, etc., which are contained in the insurance contract, in conclusion of the insurance contract. Thus, if the insurer concludes the insurance contract in violation of the duty to specify and explain such terms and conditions, it cannot claim the contents of the terms and conditions as the content of the insurance contract (see Supreme Court Decision 2005Da38713, 38720, Oct. 28, 2005, etc.). However, it is reasonable for the insurer to avoid the disadvantage of the policyholder due to the important matters of the terms and conditions as the contents of the contract, even if the terms and conditions are defined in the terms and conditions, because they are common and common in the transaction, or if they are resumed or added to such matters, they cannot be viewed as having any duty to explain and explain such matters to the insurer.

However, the reason why the insurer is subject to the duty to specify and explain the important contents of the terms and conditions on the policyholder, etc. is that the insurer intends to prevent the policyholder from suffering any unexpected disadvantage due to the terms and conditions of the contract, while the policyholder is unaware of them. Article 726-4 of the Commercial Act, which was amended by Act No. 4470 on December 31, 1991, effective from January 1, 1993, provides, “When the insured transfers an automobile during the insurance period, the transferee shall succeed to the rights and obligations arising from the insurance contract only when the insurer has obtained the insurer’s consent (paragraph 1). When the insurer is notified of the fact of transfer from the transferee, the insurer shall be notified without delay and the insurer shall be deemed to have consented if the failure of the insurer is not notified within 10 days from the date of receipt of the notice (paragraph 2), and the terms and conditions of the contract of this case shall not be deemed to have been sufficiently anticipated for the general public in transactions without an individual explanation of the insurer’s terms and conditions.

Nevertheless, the judgment of the court below on the premise that the terms and conditions of this case are subject to the insurer's individual duty of explanation and explanation is erroneous in the misunderstanding of legal principles as to the duty of explanation, etc. of the insurance terms and conditions, which affected the conclusion of the judgment. The allegation in the grounds

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Si-hwan (Presiding Justice)