Case Non-Life Insurance Co., Ltd. (former Trade Name: ELA Property Insurance Co., Ltd.) (Law Firm Subdivision, Attorneys Kim Jong-chul et al., Counsel for the plaintiff-appellant)

Defendant (Attorney Kim H-soo, Counsel for the defendant-appellant)

August 26, 2016

Gwangju District Court Decision 2014Gahap58056 Decided January 28, 2016

1. Of the judgment of the court of first instance, the part against the defendant in excess of the money ordered to be paid below is revoked, and the plaintiff's claim for revocation is dismissed

The defendant shall pay to the plaintiff 8,150,000 won with 5% interest per annum from October 31, 2014 to September 9, 2016, and 15% interest per annum from the next day to the day of full payment.

2. The defendant's remaining appeal is dismissed.

3. 10% of the total costs of litigation shall be borne by the Plaintiff, and the remainder 90% by the Defendant, respectively.

1. Purport of claim

The insurance contract between the Plaintiff and the Defendant is null and void. The Defendant paid to the Plaintiff 10,370,000 won with 20% interest per annum from the day following the delivery of a copy of the complaint of this case to the day of complete payment (the Plaintiff withdraws the lawsuit seeking confirmation of invalidity of the insurance contract of the attached Form 2 entered in the judgment at the trial, and the Defendant consented thereto. Accordingly, the part concerning the claim for confirmation of invalidity of the insurance contract of the attached Form 2 in the judgment of the first instance became null and void).

2. Purport of appeal

The part against the defendant in the judgment of the first instance is revoked, and the plaintiff's claim corresponding to the above revocation is dismissed.

1. Quotation of the first instance judgment

The reasoning for this Court concerning this case is as follows, with the exception that ① 2.B-3 (3) (6.1 to 11) (6.1) (6.1) (2) (6.12.14) shall be as follows, and ② Paragraph 3 (3) (6.12.14) shall be deleted. Accordingly, it shall be cited in accordance with the main sentence of Article 420 of the Civil Procedure Act.

[Attachment]

“3) Each of the instant insurance contracts is a legal act whose content is contrary to good morals and other social order, and is null and void pursuant to Article 103 of the Civil Act. However, as long as the Defendant asserted that each of the contracts Nos. 1 and 3 as indicated in the Attachment No. 1 and 3 are valid and sought the payment of the insurance proceeds to the Plaintiff, the Plaintiff has the interest to seek confirmation of the invalidation of each of the insurance contracts

4) Furthermore, we examine the amount of unjust enrichment to be returned to the Plaintiff by the Defendant.

An insurance contract for the benefit of a third party between a policyholder and a beneficiary is a kind of contract for the benefit of a third party (see, e.g., Supreme Court Decision 2014Da204178, Oct. 15, 2015). In a case where a contract constituting a legal relationship between a abortion and a summary for a third party is null and void or cancelled, the liquidation of such contractual relationship shall be conducted between a person who is a party to the contract and a summary. Barring special circumstances, even if the abortion has already been provided to a third party, the abortion may not seek a return thereof against the third party on the ground of unjust enrichment based on the invalidation, etc. of the contract (see, e.g., Supreme Court Decision 2010Da31860, 31877, Aug. 19, 2010).

However, in the case of the insurance contract No. 1 as indicated in the Attachment No. 1, the original defendant was the insurance beneficiary and the non-party 1 (the non-party) who was the defendant's wife was the insurance policyholder on June 24, 2013. The insurance policyholder changed to the defendant and the defendant was paid the insurance money of KRW 10,370,000 in total from the plaintiff according to each of the insurance contracts of this case. Among them, the amount of the insurance money received as the insurance beneficiary of the insurance contract No. 1 as indicated in the Attachment No. 1, which is 220,000, may be recognized

Ultimately, barring any special circumstance, unjust enrichment that the Plaintiff is entitled to claim a return to the Defendant on the ground that each of the instant insurance contracts were null and void is KRW 8,150,00,000 after deducting KRW 2,220,000 from the total insurance money that the Defendant paid to the Defendant as a beneficiary of insurance contract No. 1 listed in the separate sheet No. 1. Therefore, the Defendant is obliged to pay to the Plaintiff unjust enrichment of KRW 8,150,000 and damages for delay at a rate of KRW 15% per annum as stipulated in the main sentence of Article 3(1) of the Act on Special Cases Concerning Promotion, etc. of Legal Proceedings, etc., from October 31, 2014 to the date the copy of the instant complaint sought by the Plaintiff was served on the Defendant after the final payment date of the insurance money.

2. Conclusion

The plaintiff's claim shall be accepted within the scope mentioned above, and the remaining claims shall be dismissed without merit. The judgment of the court of first instance shall be partially accepted the defendant's appeal and shall be dismissed. Accordingly, the part of the judgment of the court of first instance against which the defendant ordered payment exceeding 8,150,000 won and the amount of 5% per annum from October 31, 2014 to September 9, 2016 and 15% per annum from the next day to the date of full payment shall be revoked, and the plaintiff's claim corresponding to the above revoked portion shall be dismissed, and the remaining appeal by the defendant shall be dismissed for lack of merit.

[Attachment]

Judges old-gu (Presiding Judge)

Judge Yang Young-hee is unable to sign due to a business trip