대법원의 즉시연금 판결을 비판하며 -대법원 2025. 10. 16. 선고 2022다225897 판결; 2023다210298판결; 2022다308747판결-

초록

In 2017, the Financial Supervisory Service's Dispute Mediation Committee recommended that life insurance companies pay the full amount of the monthly annuity claimed by consumers, citing their failure to provide explanations regarding the inheritance-maturity products they sell. However, the insurance companies appealed, leading to several lawsuits. This decision was recently overturned by the Supreme Court. The Supreme Court accepted the insurers' argument that while the deduction of the maturity benefit payment source was not incorporated into the policy due to the failure to provide explanation, if the remaining portion of the policy were interpreted objectively and uniformly from the perspective of the average person, the "deduction of the maturity benefit payment source" would again become part of the contract. The subject judgment's assumption of the average customer's interests is unlawful, anachronistic, and unjustified. Empirical research in law and economics clearly demonstrates that the subject judgment's requirement of the “average person” with the ability to understand the interests of the entire insurance group is an unrealistic assumption that completely ignores the realities of the general policyholder, who suffers from information asymmetry and lack of expertise in insurance transactions. Above all, the insurance company in this case failed to fulfill its duty of explanation, and the unexplained deduction of funds for the maturity benefit payment did not even pass the incorporation control in the policy. First, the establishment of the average person violates our laws. An average person who does not pass the incorporation control in the policy is someone who has not received any explanation and is not legally guaranteed the possibility of understanding. Nevertheless, the subject judgment set a high standard for the average person, contrary to the Commercial Act and the Insurance Business Act. The average person defined in Article 2 of the Insurance Business Act as a general insurance policyholder, who should be protected due to information asymmetry, and the average person defined in Article 663 of the Commercial Act, which restricts some private autonomy due to a non-equal relationship, are distinct concepts, clearly distinct from the "reasonable person" presupposing an equal relationship in general civil contracts. Second, the doctrine of prejudice to the predicate was applied excessively. In applying this doctrine, no distinction should be made between the interpretation of a general insurance policyholder and the interpretation of an insurance expert. The principle of pre-existing disadvantage, which was established due to serious concerns about information asymmetry and mis-selling, runs counter to its fundamental purpose. Third, the ruling in question shifts the burden of disadvantages resulting from mis-selling to consumers, who should be protected, while simultaneously granting immunity to the insurance company, the party responsible for breaching its duty to explain. Fourth, the ruling in question reverts the insurer's original intent to the void left by the invalidation of the breach of the duty to explain. This effectively nullifies the duty to explain and grants the insurer the benefit it originally intended, despite its mis-selling. This creates the absurd consequence of allowing the insurer to retain the benefits it originally sought under the contract. This effectively nullifies the duty to explain and grants the insurer immunity for its breach of the duty to explain. The argument supporting this interpretation that cancellation is the only remedy for a breach of the duty to explain is also unwarranted. This argument can be interpreted as an argument that the law treats the breach of the duty to explain lightly or that the legislation is inadequate, but this is a self-serving, misinterpretation of the law. The ruling contradicts recent legal developments and legislative intent regarding insurance (and financial) consumer protection, resulting in an anachronistic outcome that sets insurance consumer protection back several decades. We strongly urge revisions to case law regarding the interpretation of terms and conditions in cases of breach of the duty to explain, and the application of the doctrine of disadvantage to the writer.

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