[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] The case affirming the judgment of the court below that the insurer cannot claim the contents of the contract as the content of the insurance contract since the insurer did not fulfill its duty to specify and explain, in case where it did not provide a specific and detailed explanation to the policyholder on the terms of the contract that the payment of insurance money is restricted to the driver of Orba at the

[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

[1] Supreme Court Decision 97Da4494 delivered on September 26, 1997 (Gong1997Ha, 3227), Supreme Court Decision 98Da32564 delivered on November 27, 1998 (Gong1999Sang, 41), Supreme Court Decision 98Da4342, 4359 delivered on March 9, 199 (Gong1999Sang, 6236 delivered on May 30, 200 (Gong200Ha, 1526), Supreme Court Decision 2001Da14917, 14924 delivered on September 18, 2001 (Gong201Ha, 22243)

Plaintiff (Counterclaim Defendant) 1 (Attorney Shin Shin-ho, Counsel for the plaintiff-appellant)

Plaintiff 2 and two others (Attorney Shin-ho, Counsel for the plaintiff-appellant)

Ameriman Republic of Cambodia (Attorneys Kim Jae- Jae et al., Counsel for the plaintiff-appellant)

Gwangju High Court Decision 2004Na5784, 8943 Decided June 17, 2005

All appeals are dismissed. The costs of appeal are assessed against the Defendant (Counterclaim Plaintiff).

1. Determination on the grounds of appeal as to the principal lawsuit

A. As to the grounds of appeal Nos. 1 through 3

Upon entering into an insurance contract, the insurer and the person engaged in the conclusion or solicitation of the insurance contract are obligated to provide the policyholder or the insured with specific and detailed explanation and explanation of the important contents of the insurance contract, such as the content of the insurance contract, the system of insurance premium rates, changes in the entries in the written application for insurance, and reasons for exemption of the insurer's liability. If the insurer entered into the insurance contract in violation of such obligation to specify and explain the terms and conditions, the insurer may not claim the contents of the terms and conditions as the content of the insurance contract (see, e.g., Supreme Court Decisions 97Da4494, Sept. 26, 1997; 2001Da14917, 14924, Sept. 18, 201).

The court below, after compiling the adopted evidence, found facts as stated in its decision. The non-party to the insurance solicitor of the defendant (Counterclaim Plaintiff; hereinafter referred to as "the defendant") at the time of the conclusion of the insurance contract of this case, did not provide specific and detailed explanation to the deceased, who is the policyholder, and did not perform his duty to explain the terms of the contract of this case. Thus, the defendant cannot assert the contents of the contract of this case as the contents of the insurance contract of this case. In light of the above legal principles and the records, the court below's findings of fact and determination are just and there is no violation of the rules of evidence or misapprehension of legal principles as to the duty to explain the terms of this case.

In addition, in light of the records, it is difficult to view that the deceased had already been well aware of the content of the contract of this case at the time of entering into the insurance contract of this case, and it cannot be deemed that the content of the contract of this case is nothing more than the extent of returning or delaying what is prescribed by the laws and regulations. Thus, the defendant's explanation and duty

The ground of appeal pointing out this point is without merit.

B. Regarding ground of appeal No. 4

In light of the records, the judgment of the court below that the exercise of the defendant's right to terminate the contract on the ground of the violation of the duty to notify under Article 652 of the Commercial Act is effective after the expiration of the exclusion period of one month shall be justified and there is no violation of the rules of evidence as alleged in the grounds for appeal.

2. Determination on the grounds of appeal as to the counterclaim

As seen above, all of the grounds of appeal on the principal lawsuit cannot be accepted, and as long as the termination of the contract by the defendant on the grounds of violating the duty of disclosure or the duty of notification is deemed to be invalid, the argument in the grounds of appeal on the counterclaim, which is premised on the lawful termination of the contract of this case, is not acceptable.

3. Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing defendant. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-dam (Presiding Justice)