[1] The meaning of "serious negligence" of the policyholder or the insured, which is a requirement for the insurer to cancel the insurance contract on the ground of the breach of duty of disclosure, and the standard for determining whether such negligence exists

[2] The case holding that in a case where Gap and Eul, the insured, were aware of the fact that Eul's physical injury caused by disease, even if Eul did not know of the exact name at the time of entering into the insurance contract, they were aware of the fact that Eul's physical injury was caused by disease, and Eul's above symptoms affected the measurement of risk of life, and Eul's above symptoms constitute "important fact" as stipulated in Article 651 of the Commercial Act, and Eul and Eul et al were aware of the fact that they should be notified of such fact at the time of entering into the insurance contract, and Eul et al were not aware of the fact that they were suffering from serious pulmonary tuberculosis, or they were not aware of it due to gross negligence, since Eul et al. and Eul et al were killed at the time of entering into the insurance contract

[1] Article 651 of the Commercial Code / [2] Article 651 of the Commercial Code

[1] Supreme Court Decision 2014Da7336, 73343 Decided May 14, 2015

Plaintiff (Law Firm Jinjin, Attorneys Cho Yong-sik et al., Counsel for the plaintiff-appellant)

Hyundai Marine Fire Insurance Co., Ltd. (Attorney Park Sung-won et al., Counsel for the plaintiff-appellant)

Seoul Central District Court Decision 2017Na85773 Decided October 5, 2018

The judgment of the court below is reversed, and the case is remanded to the Seoul Central District Court Panel Division.

The grounds of appeal are examined.

1. When a policyholder or the insured has failed to notify, or has notified, of material facts intentionally or by gross negligence at the time of the insurance contract, the insurer may terminate the contract within a certain period (Article 651 of the Commercial Act). Gross negligence here means that the insurer was unaware of the existence of material facts due to apparent negligence or unaware of the material facts that the fact should be notified due to a mistake in the decision of importance. Whether such negligence exists shall be determined individually and specifically in light of social norms, in light of all the circumstances, such as the content of the insurance contract, the importance of the fact that the insurance contract should be notified, the developments leading to the conclusion of the insurance contract, and the relationship between the insurer and the insured (see Supreme Court Decision 2014Da7336, 73343, May 14, 2015).

2. A. The court below rejected the Defendant’s assertion that the conclusion of the insurance contract constitutes a breach of the duty of disclosure by concealing the fact that the deceased suffered from serious disease such as pulmonary tuberculosis and his body was unable to work at work two weeks before her death, and it is difficult to find that the Plaintiff, the policyholder, and the deceased, were entering into the insurance contract of this case without concealing the above facts, and that there was no gross negligence.

B. However, the above determination by the court below is difficult to accept in the following respect.

1) Review of the reasoning of the lower judgment and the record reveals the following facts.

A) On September 5, 2014, the Deceased was a person working in a singing room operated by the Plaintiff, and the Plaintiff entered into the instant insurance contract with the Defendant as the insured on September 5, 2014, and subscribed to the disease death security clause that the Deceased would receive KRW 200 million upon the death of the disease.

B) From the date of conclusion of the instant insurance contract, the Deceased died on September 7, 2014, which was after this framework, and the result of the autopsy revealed that the private person was “high-do pulmonary tuberculosis.”

C) According to the inquiry and reply of the fact-finding to the Korean Medical Association submitted as evidence by the lower court, “high-level pulmonary tuberculosis” generally refers to cases where pulmonary tuberculosis is seriously damaged due to the pulmonary tuberculosis’s invasion on both sides, and may cause symptoms, such as heat, physical decrease, paralysis, respiratory distress, respiratory distress, respiratory distress, breath, outpatients, and multiple-bloods.

D) On September 7, 2014, Non-party 1, who was living together with the deceased, was present at the police station on September 7, 2014, where the deceased died, and was unable to properly take meals, such as failure to move boomed for a period of two weeks before the deceased, and the body did not work in a singing room operated by the Ampha Plaintiff, and the symptoms, such as blad, flad, and physical decrease, were revealed.

E) During the party principal examination of the first instance court for himself, the Plaintiff stated that the deceased stated that “I will see why we will do so? I will see the hospital?”

F) The medical advisory report prepared by Nonparty 2 of the ○○○ Medical Center head, △△△△△, which was presented as evidence by the lower court, states that “It is medically impossible to die due to the aggravation of the sudden progress every day due to the occurrence of consumable diseases with a considerable time due to no special symptoms, in the absence of any special symptoms.”

G) Person living together with the deceased, Nonparty 1 also concluded an insurance contract with the deceased as the insured before the deceased’s death frame. Nonparty 1 stated to the effect that, at the police station, the deceased’s health worsens, such as the decline in the body of the deceased, etc., the deceased was insured, and that he entered into an insurance contract with the insurance solicitor who introduced the deceased’s life.

H) At the time of entering into an insurance contract by Nonparty 1, Nonparty 3, at the police station, stated that the Plaintiff introduced himself/herself to the Deceased and Nonparty 1.

2) According to this, even if the Plaintiff, a policyholder, and the Deceased, were not aware of the exact name of the deceased at the time of the conclusion of the instant insurance contract, they appear to have been aware of the fact that the deceased was suffering from serious injury to his body caused by a disease. In light of the progress of the death of the deceased, it is reasonable to view that the above symptoms of the deceased affect the measurement of risk of life and fall under “important matters” under Article 651 of the Commercial Act, and that the Plaintiff and the Deceased were sufficiently aware of, or were unaware of, such circumstances at least due to significant negligence at the time of concluding the instant insurance contract.

C. Nevertheless, the lower court rejected the Defendant’s defense based on the premise that the Plaintiff or the Deceased violated the duty of disclosure at the time of entering into the instant insurance contract. In so doing, the lower court erred by misapprehending the rules of evidence as to the violation of the duty of disclosure, or by misapprehending the legal doctrine on intentional or gross negligence in the breach of the duty of disclosure, thereby adversely affecting the conclusion

3. Therefore, without further proceeding to decide on the remaining grounds of appeal, 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 Kim Seon-soo (Presiding Justice)