III. Main Issues
A main issue in the KFTC’s decision and the courts’ judgments in the case was whether the insurers’ non-payment of part of insurance payouts had constituted an act of “giving the transacting partner disadvantages in the execution process of the transaction”, one of the “acts of engaging in a trade with a transacting partner by unfairly taking advantage of its own position in the transaction” set forth in Article 23(1) subparagraph 4 of the MRFTA.
1. Issue of whether an act of providing disadvantages could be acknowledged
In its decision, the KFTC concluded that the respondents had held a superior position and their conduct constituted an act of providing disadvantages by intentionally not paying indirect insurance payouts (omission) in violation of their obligation to consider reasonable benefits for the victims, and that their conduct could be seen as an unreasonable act in light of normal trade practices. The KFTC’s rationale in its decision will be further explained in this section.
1) Issue of whether there was a superior position
The KFTC paid attention to the nature of the contractual relationship, based on the insurance policy. The agency viewed that, in addition to the liability for bodily injury, the liability for property damage under the automobile insurance policy had in effect the nature of compulsory insurance. Unlike bodily injury insurance (formerly, liability insurance) that was compulsory under the Motor Vehicle Compensation Guarantee Act, property damage insurance was not mandatory until January 2005. As a car owner had to purchase a property damage insurance policy covering at least KRW 10 million pursuant to this Act from February 2005, as much as 86% to 92% of automobile insurance policies included property damage liability, which implies that such liability was actually mandatory in its nature. The KFTC concluded that there was power imbalance because the insurers, mostly large enterprises, seemed to be in an advantageous position, compared with the victims who were insurance consumers, in terms of bargaining power and business capability. These insurance companies also had extensive experience and legal knowledge about insurance. However, the victims found it difficult to argue about the insurance payouts since they were in lack of legal knowledge about the provisions on damage compensation stipulated in the insurance policy. Thus, the victims had to accept the damage assessment (insurance payment calculation) determined by the respondents, which means information imbalance. In particular, unlike commercial claims with five years of extinctive prescription, automobile insurance claims would be extinguished by prescription in a short period of two (or three) years. Thus, if insurance consumers including the victims were not aware of their right due to the lack of adequate explanations about compensation for actual damage set forth in the insurance clauses, it would be highly likely that their rights and interests are infringed upon, which was a reasonable decision of the KFTC. It also considered the circumstances where the victims of a car accident could not choose an insurance company to exercise their claim for damages, and that, in reality, most of them could not but had disadvantages as they did not know about the compensation for non-use of a rental car even when the insurers caused disadvantages through the passive omission of their action.
2) Issue of whether an act of providing disadvantages is unreasonable in light of normal trade practices
The KFTC recognized the disadvantages which were provided by the respondents as follows: In this case, the disadvantages were related to monetary loss (non-payment of insurance payouts set forth in the insurance clauses). As there was no dispute over the existence and scope of the damage compensation liability, it is deemed that the existence of the damage and its scope (amount of damage) for which the respondents were liable were clearly defined, and that there were no special circumstances which allowed these companies not to perform their obligations at an appropriate time or to refuse such performance. Furthermore, even when the respondents had the obligation to assess the amount of damage pursuant to the insurance policy and pay the insurance payouts to the owners of damaged cars, they only paid the costs of car repairs and rentals, which were relatively large in amount and which most consumers including the victims were well aware of, not the indirect insurance payouts such as compensation for non-operation of cars and loss from automobile appreciation, which were small in amount and rarely recognized by the victims. According to the KFTC’s decision, it is clear that the non-payment of such items by taking advantage of the lack of awareness13 gave disadvantages to the victims who intended to be compensated for the damage through insurance policies. The KFTC also concluded that the unlawfulness could be recognized because letting many of the victims not file a claim for such indirect insurance payouts was contrary to normal trade practices. That the respondents provided no explanation or notice about the indirect insurance items explains their intent or purpose regarding such insurance payouts.
3) The respondents’ argument and the KFTC’s position
On the premise that a trade relationship means a legal relationship formed through the intention of parties concerned, the respondent argued that the relationship between each insurance company and the victims was merely a legal relationship established by law, in which the insurers provided insurance payouts when the direct claim for damages was exercised, not a trade relationship that was a legal relationship formed through the intention of the parties. In other words, they just assumed the damage compensation liability along with the insured, the respondents argued.
However, the KFTC viewed that a de facto trading relationship existed between the insurance companies and the victims because, regarding insurance payouts, both the
insurance; therefore, it was impossible to calculate the accurate amount of unpaid indirect damage insurance, and that it was also difficult to manually sort out such cases among 6,280,515 cases of property damage associated with car accidents which were handled by these eight non-life insurance companies over the past four years, it ruled that the amount of damage could be determined based on the average amount of indirect damage insurance already paid.
13 According to a survey on consumer awareness on automobile property damage, 87.4% of the people (5,246 people) replied that they did not know they were entitled to compensation for non-operation even though they did not rent a car while 88.9% (5,332 people) said that they were not aware of compensation for automobile depreciation [survey on non-payment of automobile insurance by the Korea Consumer Agency in December 2005].
policyholders including the insured and the victims could be subject to disadvantages, considering the nature of non-life insurance. Even though the victims exercised a direct claim for property damage insurance and the respondents provided the payouts through a relationship established by law, the problem of abusing an advantageous position in transaction may arise in the execution process. Therefore, in view of the purpose of the MRFTA, it is not reasonable to confine a trading relationship to exchange of goods or services through the intention of the parties concerned.
The respondents argued that there was no trade relationship between the victims and them, and even if there had been, the bargaining power and information imbalance alone would not have been enough to prove the existence of a superior position since the superior position means a position enabling a party to force its trading partner to purchase the products he or she does not want or accept disadvantageous terms of trade against his or her free will. According to the respondents’ argument, even when the victims did not accept their requests, they were not likely to face disadvantages such as refusal to pay damages or loss of trading accounts, and thus bargaining power and information imbalance would be insufficient for an advantageous position to be recognized.
However, on the grounds that (i) automobile insurance had the nature of a public insurance as well as a mandatory insurance; (ii) there existed imbalance of power and information between the parties; (iii) the owners of the cars damaged in accidents could not choose a nonlife insurance company to exercise their claim for damages; and (iv) in reality, when the insurers provided disadvantages by omitting performance of their obligations, most of these victims had to suffer them because they did not know of indirect insurance items such as compensation for non-use of rental cars, the KFTC concluded that the insurance companies were deemed to be in an advantageous position in transaction, and thus such argument was groundless.
Lastly, the respondents argued that non-payment of indirect damage insurance to the victims who did not file such claim was just omission of an action which was not compulsory, and it, thus, did not constitute an act of unreasonably providing disadvantages. If it had been to be recognized as an act of providing disadvantages, it should have been as compulsory as coercion to purchase, coercion to provide benefit, and coercion of sales target. In this regard, their conduct was not unreasonable as they did not coerce the victims to do something, the respondents argued.
However, the KFTC reasoned that the respondents’ non-payment of the compensation for car rentals and automobile depreciation, though small in amount as it was,
III. Main Issues
A main issue in the KFTC’s decision and the courts’ judgments in the case was whether the insurers’ non-payment of part of insurance payouts had constituted an act of “giving the transacting partner disadvantages in the execution process of the transaction”, one of the “acts of engaging in a trade with a transacting partner by unfairly taking advantage of its own position in the transaction” set forth in Article 23(1) subparagraph 4 of the MRFTA.
1. Issue of whether an act of providing disadvantages could be acknowledged
In its decision, the KFTC concluded that the respondents had held a superior position and their conduct constituted an act of providing disadvantages by intentionally not paying indirect insurance payouts (omission) in violation of their obligation to consider reasonable benefits for the victims, and that their conduct could be seen as an unreasonable act in light of normal trade practices. The KFTC’s rationale in its decision will be further explained in this section.
1) Issue of whether there was a superior position
The KFTC paid attention to the nature of the contractual relationship, based on the insurance policy. The agency viewed that, in addition to the liability for bodily injury, the liability for property damage under the automobile insurance policy had in effect the nature of compulsory insurance. Unlike bodily injury insurance (formerly, liability insurance) that was compulsory under the Motor Vehicle Compensation Guarantee Act, property damage insurance was not mandatory until January 2005. As a car owner had to purchase a property damage insurance policy covering at least KRW 10 million pursuant to this Act from February 2005, as much as 86% to 92% of automobile insurance policies included property damage liability, which implies that such liability was actually mandatory in its nature. The KFTC concluded that there was power imbalance because the insurers, mostly large enterprises, seemed to be in an advantageous position, compared with the victims who were insurance consumers, in terms of bargaining power and business capability. These insurance companies also had extensive experience and legal knowledge about insurance. However, the victims found it difficult to argue about the insurance payouts since they were in lack of legal knowledge about the provisions on damage compensation stipulated in the insurance policy. Thus, the victims had to accept the damage assessment (insurance payment calculation) determined by the respondents, which means information imbalance. In particular, unlike commercial claims with five years of extinctive prescription, automobile insurance claims would be extinguished by prescription in a short period of two (or three) years. Thus, if insurance consumers including the victims were not aware of their right due to the lack of adequate explanations about compensation for actual damage set forth in the insurance clauses, it would be highly likely that their rights and interests are infringed upon, which was a reasonable decision of the KFTC. It also considered the circumstances where the victims of a car accident could not choose an insurance company to exercise their claim for damages, and that, in reality, most of them could not but had disadvantages as they did not know about the compensation for non-use of a rental car even when the insurers caused disadvantages through the passive omission of their action.
2) Issue of whether an act of providing disadvantages is unreasonable in light of normal trade practices
The KFTC recognized the disadvantages which were provided by the respondents as follows: In this case, the disadvantages were related to monetary loss (non-payment of insurance payouts set forth in the insurance clauses). As there was no dispute over the existence and scope of the damage compensation liability, it is deemed that the existence of the damage and its scope (amount of damage) for which the respondents were liable were clearly defined, and that there were no special circumstances which allowed these companies not to perform their obligations at an appropriate time or to refuse such performance. Furthermore, even when the respondents had the obligation to assess the amount of damage pursuant to the insurance policy and pay the insurance payouts to the owners of damaged cars, they only paid the costs of car repairs and rentals, which were relatively large in amount and which most consumers including the victims were well aware of, not the indirect insurance payouts such as compensation for non-operation of cars and loss from automobile appreciation, which were small in amount and rarely recognized by the victims. According to the KFTC’s decision, it is clear that the non-payment of such items by taking advantage of the lack of awareness13 gave disadvantages to the victims who intended to be compensated for the damage through insurance policies. The KFTC also concluded that the unlawfulness could be recognized because letting many of the victims not file a claim for such indirect insurance payouts was contrary to normal trade practices. That the respondents provided no explanation or notice about the indirect insurance items explains their intent or purpose regarding such insurance payouts.
3) The respondents’ argument and the KFTC’s position
On the premise that a trade relationship means a legal relationship formed through the intention of parties concerned, the respondent argued that the relationship between each insurance company and the victims was merely a legal relationship established by law, in which the insurers provided insurance payouts when the direct claim for damages was exercised, not a trade relationship that was a legal relationship formed through the intention of the parties. In other words, they just assumed the damage compensation liability along with the insured, the respondents argued.
However, the KFTC viewed that a de facto trading relationship existed between the insurance companies and the victims because, regarding insurance payouts, both the
insurance; therefore, it was impossible to calculate the accurate amount of unpaid indirect damage insurance, and that it was also difficult to manually sort out such cases among 6,280,515 cases of property damage associated with car accidents which were handled by these eight non-life insurance companies over the past four years, it ruled that the amount of damage could be determined based on the average amount of indirect damage insurance already paid.
13 According to a survey on consumer awareness on automobile property damage, 87.4% of the people (5,246 people) replied that they did not know they were entitled to compensation for non-operation even though they did not rent a car while 88.9% (5,332 people) said that they were not aware of compensation for automobile depreciation [survey on non-payment of automobile insurance by the Korea Consumer Agency in December 2005].
policyholders including the insured and the victims could be subject to disadvantages, considering the nature of non-life insurance. Even though the victims exercised a direct claim for property damage insurance and the respondents provided the payouts through a relationship established by law, the problem of abusing an advantageous position in transaction may arise in the execution process. Therefore, in view of the purpose of the MRFTA, it is not reasonable to confine a trading relationship to exchange of goods or services through the intention of the parties concerned.
The respondents argued that there was no trade relationship between the victims and them, and even if there had been, the bargaining power and information imbalance alone would not have been enough to prove the existence of a superior position since the superior position means a position enabling a party to force its trading partner to purchase the products he or she does not want or accept disadvantageous terms of trade against his or her free will. According to the respondents’ argument, even when the victims did not accept their requests, they were not likely to face disadvantages such as refusal to pay damages or loss of trading accounts, and thus bargaining power and information imbalance would be insufficient for an advantageous position to be recognized.
However, on the grounds that (i) automobile insurance had the nature of a public insurance as well as a mandatory insurance; (ii) there existed imbalance of power and information between the parties; (iii) the owners of the cars damaged in accidents could not choose a nonlife insurance company to exercise their claim for damages; and (iv) in reality, when the insurers provided disadvantages by omitting performance of their obligations, most of these victims had to suffer them because they did not know of indirect insurance items such as compensation for non-use of rental cars, the KFTC concluded that the insurance companies were deemed to be in an advantageous position in transaction, and thus such argument was groundless.
Lastly, the respondents argued that non-payment of indirect damage insurance to the victims who did not file such claim was just omission of an action which was not compulsory, and it, thus, did not constitute an act of unreasonably providing disadvantages. If it had been to be recognized as an act of providing disadvantages, it should have been as compulsory as coercion to purchase, coercion to provide benefit, and coercion of sales target. In this regard, their conduct was not unreasonable as they did not coerce the victims to do something, the respondents argued.
However, the KFTC reasoned that the respondents’ non-payment of the compensation for car rentals and automobile depreciation, though small in amount as it was,
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