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