??????????? ??? ??????????? ?? ??- ??? 2013. 6. 13 ?? 2010?34159 ?? - (A Review of a Duty to explain and the Principle of Confirmity in Variable Universal Insurance Contract - Supreme Court Decision 2006Da17539 Decided July 12, 2013 -)

In recent case (2006Da17539), the Korean supreme court judged about aduty to explain the significant matters of contract and the principle of confirmityin variable universal life insurance contract.
The supreme court support the decision of Seoul high court (2009Na97606 decided March 31, 2010) partly. In this case the supreme court decisionagree with the breach of the duty of explain of insurance solicitor. But inapplying principle of confirmity, the supreme court reversed a judgement of theoriginal court and remanded the case to the original court for future developing.
Currently, this case is pending in original court. Above all, supreme courtallowed comparative negligence in formation of insurance contract.
The writer have been comment the high court's decision in Vol. 385 ofMonthly Life Insurance published by Korea Life Insurance Association. Thewriter rewrote the comment since the supreme court's decision is differ fromhigh court's decision in some important points. The decision of the supremecourt is particularly significant because it clarified that when deciding the tortliability of the insurance company it is possible to comparative negligence atcourt's discretion. The supreme court emphasize that the principle of conformity should be prudentially applied.
New Insurance business act of 2010 art.95-3 provide the Principle ofConformity and limit the scope of the insurance products governed by abovearticle is prescribed by Presidential Decree. Variable insurance included theexample of investment product have to apply the conformity rule. Also,Insurance business act art.95-4 provide the duty of explain to apply all insurancebusiness include variable insurance. And Enforcement decree of the insurancebusiness act newly insert art.42-3 (Matters to Confirm, etc. under Principle ofConformity) in 2011. The decree describe the standard of judgement on theconformity in detail. Those are age of the policyholder; monthly income andthe share of insurance premium disbursement in the monthly income ; purposeof purchasing the insurance ; whether the policyholder has an amount-variableinsurance contract or has purchased collective investment securities under Article9 (21) of the Financial Investment Services and Capital Markets Act. Abovematters deemed necessary for recommendation of the conclusion of an insurancecontract suitable to the policyholder. The original court shall render ajudgement. The factual and legal findings, which has been regarded by thecourt of final appeal as the ground of reversal, shall be binding. And theoriginal court shall review the circumstance evidence consider the intent ofabove statutes.

In recent case (2006Da17539), the Korean supreme court judged about aduty to explain the significant matters of contract and the principle of confirmityin variable universal life insurance contract.
The supreme court support the decision of Seoul high court (2009Na97606 decided March 31, 2010) partly. In this case the supreme court decisionagree with the breach of the duty of explain of insurance solicitor. But inapplying principle of confirmity, the supreme court reversed a judgement of theoriginal court and remanded the case to the original court for future developing.
Currently, this case is pending in original court. Above all, supreme courtallowed comparative negligence in formation of insurance contract.
The writer have been comment the high court's decision in Vol. 385 ofMonthly Life Insurance published by Korea Life Insurance Association. Thewriter rewrote the comment since the supreme court's decision is differ fromhigh court's decision in some important points. The decision of the supremecourt is particularly significant because it clarified that when deciding the tortliability of the insurance company it is possible to comparative negligence atcourt's discretion. The supreme court emphasize that the principle of conformity should be prudentially applied.
New Insurance business act of 2010 art.95-3 provide the Principle ofConformity and limit the scope of the insurance products governed by abovearticle is prescribed by Presidential Decree. Variable insurance included theexample of investment product have to apply the conformity rule. Also,Insurance business act art.95-4 provide the duty of explain to apply all insurancebusiness include variable insurance. And Enforcement decree of the insurancebusiness act newly insert art.42-3 (Matters to Confirm, etc. under Principle ofConformity) in 2011. The decree describe the standard of judgement on theconformity in detail. Those are age of the policyholder; monthly income andthe share of insurance premium disbursement in the monthly income ; purposeof purchasing the insurance ; whether the policyholder has an amount-variableinsurance contract or has purchased collective investment securities under Article9 (21) of the Financial Investment Services and Capital Markets Act. Abovematters deemed necessary for recommendation of the conclusion of an insurancecontract suitable to the policyholder. The original court shall render ajudgement. The factual and legal findings, which has been regarded by thecourt of final appeal as the ground of reversal, shall be binding. And theoriginal court shall review the circumstance evidence consider the intent ofabove statutes.