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뉴스2013년 5월 12일
"You can keep your recruiting commission even if you're fired as an agent"
"You can get the remaining recruitment fee even if you are fired as an agent"
Lawyer Ahn Byeong-han wins against a corporate agent
The insurance industry's attention was drawn to the court's decision for the first time to favor the agent's hand in the recoupment of recruitment fees.
On March 29, the Seoul Western District Court's Second Civil Division (Presiding Judge Ko Chung-jung) issued a ruling (see below) overturning the first trial court's ruling that "the agent is not obligated to pay the residual recruitment fee and must pay the refund amount of 300 million won due to the cancellation of the insurance contract."
◆Stop the insurance industry practice
The gist of the appeals court's ruling is that it is unfair for an insurance company to claim a refund when an insurance agent is dismissed from his or her agency and still has residual commissions.
In the meantime, the insurance industry has accepted the rule that "residual commissions are not paid to agents who are terminated."
We met with Ahn Byeong-han (40사진), a lawyer who defended the case, which has become a hot issue in the insurance industry, at the office of Hanbyul Law Firm in Yeoksam-dong, Gangnam-gu, Seoul, on the 9th.
"Mr. Jung lost the first trial in response to a 'lone wolf lawsuit' without a lawyer when the insurer claimed refunds for policies that had been invalidated or canceled after he quit his job as an insurance agent," Ahn said. "I learned about his story by chance, took on his defense, and won the case after a fierce legal battle."
Mr. Chung was overjoyed when the appeals court ruling was handed down, he said."
"He was not just happy that he had won the case, but more importantly, he was happy that the regulations that had unfairly impacted the socially disadvantaged agents had been changed," Mr. Ahn said.
The ruling is significant in terms of protecting the rights of agents, as it could put a stop to the practice of agents not being paid for "residual commissions" after they quit their jobs, but having to comply with insurers' demands for refunds.
Jung started working as an insurance agent at a GA in January 2008 and worked until October of the same year.
The contract period was set until the insurer's business rules were violated or Mr. Chung wanted to be terminated.
Mr. Chung's premiums for new insurance contracts during the 10-month period were about 8.25 million won.
The recruitment commission payable to Mr. Chung by the insurer under the insurance contract totaled 30.63 million won.
Mr. Chung received 21.81 million won in installments from the insurer.
More than 2.73 million won was deducted from the recruitment fee as insurance contracts were ineffective or canceled while he was acting as an insurance agent.
◆Offset of remaining recruitment commissions and refunds
◆Remaining recruitment commissions and refunds
The recruitment commissions for the insurance contracts that continued to be in force after Mr. Chung ceased to be an agent were approximately KRW 6 million.
But the insurer did not pay the commission, citing the insurance agent commission contract and commission payment regulations.
"The court found that it was unfair for the insurer to refund 3.1 million won for the insurance contract that was invalidated and terminated after the agent's dismissal without giving Mr. Chung the residual recruitment fee," said Ahn. "Mr. Chung argued that the refund of 3 million won should be offset against the 6 million won (recruitment fee) that he did not receive, and the court accepted and won the case."
This ruling can also be interpreted as the right to claim unearned recruitment commissions after terminating an insurance agent.
The insurance industry has not paid residual recruitment commissions after terminating an agent as a matter of practice.
On the other hand, this ruling is also significant in that it recognizes the 'commission payment rules' signed between insurers and agents as terms and conditions subject to the Act on the Regulation of Terms and Conditions (hereinafter referred to as the Act on the Regulation of Terms and Conditions).
In the past, insurers have disadvantaged agents by making allowance rules or agreements when contracting with agents and not paying residual recruitment commissions in accordance with these rules.
"In this ruling, even if the insurer has created allowance regulations and standards and grounds, the court recognized the allowance regulations themselves as terms and conditions," said Ahn. "Unfair terms and conditions are subject to regulation under the current Terms and Conditions Regulation Act, which will greatly help agents exercise their rights in the future."
"Despite the fact that the insurer is not a legislative body, the company enacted regulations as if they were laws and told its agents to 'follow these regulations,'" Mr. Yi said. We don't pay post-solicitation commissions for good cause,'" he said, adding that he hopes this will change in the future.
◆Check the rules carefully when signing a solicitation contract
◆Insurers and agents have a contractual relationship
"The basis for revenue sharing between the two parties is the contract, "It does not ask about the form of the contract," he said, adding, "It will be advantageous for the agent to recognize this contract as a term, so that any terms that are unfair to the client can be invalidated as an unfair
term.
Ahn, who said he is personally interested in antitrust law for consumer protection, expressed pride in setting a meaningful precedent with this ruling, regardless of the large or small amount of the lawsuit."
"The Terms and Conditions Regulation Act also falls under the antitrust law for consumer protection," said Ahn, "and it is meaningful to break the existing practice and set a precedent that is beneficial to the weak and consumers.
The plaintiffs in this case argued that they were insurance corporate agents and "not insurers." However, the court recognized that insurance corporate agents are insurers because they perform the same business as insurers."
This ruling will open the way for insurance agents to recover unjust enrichment if they are terminated and do not receive the residual commission they are owed from insurers.
"Although the statute of limitations for claiming unjust enrichment is 10 years, there is room to view the contract between the insurer and the agent as a commercial transaction," said Ahn. "Since the statute of limitations for commercial transactions is 5 years, an agent who has been terminated within 10 years or 5 years can file a lawsuit against the insurer to recover unjust enrichment."
Insurance agents are easy to get a job in, but they are also one of the most turnover-prone industries. There are also frequent disputes between agents and insurers."
Ahn, who said he hopes to help protect the rights of insurance agents in the future, pointed out that "many agents do not know the criteria for the benefits they receive and assume that the insurer will pay them.
Meanwhile, the case is being appealed by the insurance agency and is awaiting the Supreme Court's decision.
Kim Soon-hee, reporter ksh@
Ruling on Insurance Agents
Plaintiff (Appellant) OOO, Defendant (Appellant) JungOO
◆Order
1. The judgment of the first instance is reversed;
2. The plaintiff's claim is dismissed;
3. The plaintiff shall bear the costs of the proceedings.
◆Claims and Appeal
1. Claims The defendant shall pay the plaintiff 3,182,564 won, plus interest at the rate of 20% per annum from the day after the date of service of the original order for payment until the date of payment.
2. Same as the order on appeal.
◆Reasons
1. Basic Facts
A. The plaintiff is a company established for the purpose of insurance agency business, financial product brokerage and sales business, etc. and around January 2008, the defendant and the plaintiff entered into a private banker commission agreement stipulating that the defendant would be in charge of insurance recruitment and indirect investment solicitation entrusted by the plaintiff, and the plaintiff would pay sales commissions for the same.
B. The main contents of the above commission contract are as follows:
Article 3 (Contract Period)
① The basic contract period of this contract shall be effective from the date of signing the contract, and the contract shall be valid until the plaintiff violates the financial laws and regulations and the business processing regulations enacted by the plaintiff in accordance therewith, or until the defendant wishes to terminate the contract.
② If this Agreement becomes ineffective due to expiration, termination, or other reasons, the Commissioning Agreement shall be null and void. However, if the parties agree, the effectiveness of the contract may be continued."
Article 7 (Sales Commission)
① The sales commission to the defendant shall be separately determined by the plaintiff, and the plaintiff shall pay the sales commission within the specified period in accordance with the regulations on sales commission.
② The plaintiff may change the rules related to the sales commission paid to the defendant under paragraph 1.
Article 8 (Change of Contract)
① If the plaintiff wishes to change the contents of the contract, it shall notify the defendant without delay so that the defendant can confirm the change and obtain the defendant's handwritten signature.
② If there is a legitimate reason to change the company's regulations, guidelines, etc. related to the consignment business in accordance with the revision of financial related laws and regulations, it may be changed. In this case, the plaintiff shall notify the defendant individually in advance or notify the change through methods such as posting on the internal computer network."
Article 10 (Termination of Contract)
① The defendant may terminate this contract at any time upon request, and the termination shall take effect upon completion of the plaintiff's termination procedure.
Article 11 (Termination Procedure)
① If the Defendant wishes to terminate this Agreement, it shall notify the Plaintiff in writing of its intention to terminate.
C. The plaintiff's 'Sales Management Regulations' were enacted on September 2, 2007, and revised for the first time on January 4, 2008, and revised for the second time on July 6, 2008, and revised for the third time on January 2, 2009, and the contents of the 'Commission Payment Regulations' among the above sales management regulations are as follows.
Article 3 (Payment Target)
1. The commission shall be paid only to the commissioner who is currently being commissioned on the date of commission payment. However, if a new PB is in training, the commission may be paid even before commissioning.
2. No commission shall be paid to the promoter.
Article 4 (Commission Payment Date)
1. The commission payment date shall be paid on the 27th day of the following month of each performance calculation period. However, the Company may change the payment date by judging the efficiency of management."
Article 8 (Invalidity, Termination, Cancellation, Withdrawal, Lapses, Suspension of Payment, etc.)
1. No commission will be paid for contracts that are invalid, canceled, canceled, withdrawn, invalid, or suspended as of the month of commission payment."
2. Commission already paid shall be refunded in accordance with the 'Commission Refund Policy' and the Affiliate Commission Payment Policy.
Article 9 (Commission Payment upon Contract Transfer)
1. For contracts that are not managed because the commissioner who recruited the contract is dismissed, the contract shall be transferred to the commissioner designated by the company, and the residual commission shall be paid to the commissioner in accordance with the 'Commission Payment Regulations'
R. On the other hand, according to Plaintiff's "Guidelines for Payment of Sales Commissions" dated January 1, 2008 (hereinafter referred to as the "Commission Guidelines in this case"), insurance agents are paid commissions such as marketing performance commission, recruitment commission, and excess performance commission, among which the recruitment commission is 25% of the total recruitment commission, which is paid in the second, fifth, eighth, and eleventh months of the recruitment month.
Since then, the above payment method has been changed to 50% of the total subscription fee is paid in the 2nd month of the subscription month, and the remaining subscription fee is paid in 1/12th installments from the 8th month to the 13th month.
In addition, if the commission (net sales commission) subject to the calculation of the marketing performance fee is reduced to the minimum net sales commission to be paid due to non-payment, lapses, or cancellation within the 13th month of the marketing performance fee calculation month, the marketing performance fee will be paid within the 24th month, In the event of non-maintenance reasons such as cancellation, a certain amount of the marketing performance fee and recruitment fee (including excess performance fee) already paid shall be refunded, but the unrecovered recruitment fee of the current month shall be carried over and refunded until the refund fee becomes '0', and the unfulfilled contract, invalidation, reduction, and change such as cancellation, termination, and invalidity shall be refunded from the performance in the month following the cause.
E. From January 1, 2008 to October 8, 2008, the Defendant recruited term insurance under the commission contract in this case, incurred a total recruitment fee of KRW 30,637,500 based on a total of KRW 8,250,000 in new contract premiums, and received a recruitment fee of KRW 21,811,750 in installments on the 25th day of the month following the recruitment month during the commission contract period (however, KRW 2,737,000 in commission refunds incurred during the above period were deducted).
B. The Defendant was terminated on January 30, 2009, and from the date of termination until May 2009, the additional insurance contracts procured by the Defendant were invalidated and terminated, resulting in a total of KRW 3,182,564 in commissions owed by the Defendant to the Plaintiff.
[Admissions]
The undisputed facts, Exhibits 1 through 7, each of which are attached hereto as Exhibit 1 (including their respective paragraph numbers), and the entire pleadings.
2. Ruling on the Cause of Action.
Based on the above admitted facts, and absent special circumstances, Defendant is obligated under the Fee Clawback Rule to return to Plaintiff the $3,182,564 in recruitment and marketing performance fees already paid.
3. Ruling on the Defendant's Counterclaims
A. The defendant argues that the plaintiff is obligated to pay the defendant KRW 6,088,750 in residual commission for the insurance contracts that were solicited during the commission contract period and maintained after the termination, so the above commission payment bond is an automatic bond and is set off against the above commission return bond.
B. Accrual of residual finder's fee Based on the above admitted facts, the plaintiff is obligated to pay the defendant a residual finder's fee of KRW 6,088,750 out of the total finder's fee of KRW 30,637,750 earned during the term of the commission agreement, less the finder's fee of KRW 21,811,750 already paid to the defendant.
And the above commission payment bonds reached their due date sequentially from around February 25, 2009 to October 25, 2009, the thirteenth month of October 2008, the last month of the subscription period, and the plaintiff's commission return bonds against the defendant reached their due date sequentially from around January 25, 2009 to June 25, 2009, the month following May 2009, the last month in which the insurance contract became effective. Therefore, it can be said that both the plaintiff's and the defendant's debts reached their payment periods and were in a state of set-off on October 25, 2009.
On the other hand, the defendant, in the course of the first trial of this case, expressed its intention to set-off through a preparation letter dated June 13, 2012, and a copy of the above preparation letter containing the intention was sent to the plaintiff on June 19, 2012. Ruling on Plaintiff's Arguments
(1) Argument
Plaintiff argues that it is not obligated to pay the Residual Recruitment Fee because the fee is payable only to those who are recruiting as of the date of payment and not to the Promoter.
In response, the Defendant argues that the stipulation that no commission is payable to facilitators was amended on January 2, 2009, after the signing of the retainer agreement. The defendant contends that the plaintiff added a new stipulation when it revised the commission payment stipulation in this case, but the defendant did not agree to the above revision, so the revised stipulation cannot be applied to the defendant, and even if it can be applied, the commission payment stipulation in this case is a stipulation subject to the Act on the Regulation of Terms and Conditions (hereinafter referred to as the "Terms and Conditions Regulation Act"), which is unfairly unfavorable to the defendant, an insurance agent, and is invalid as a stipulation that is contrary to the principle of good faith and fairness.
(2) Judgment
(a) The former Act on the Regulation of Terms and Conditions (Act No. 10169 of March 22, 2010. Act No. 10169 of 2010, hereinafter referred to as the 'Terms and Conditions Regulation Act'), Article 2 (1) stipulates that the term 'terms and conditions' refers to the contents of a contract, regardless of its name, form or scope, that one party to a contract has prepared in advance in a certain form to enter into a contract with a number of other parties.
The fact that the plaintiff and the defendant agreed that the payment of sales commissions under Article 7 of the commission agreement at the time of entering into the commission agreement in this case shall be in accordance with the commission payment regulations; the fact that the commission payment regulations in this case have been the basis for the payment and reimbursement of allowances that constitute the content of the contract when the plaintiff enters into commission agreements with a number of insurance agents such as the defendant; and the fact that the commission payment regulations in this case are in written form,The fact that it exists under the name of 'Commission Payment Regulations', etc., as seen above, based on the above admitted facts, it can be said that the commission payment regulations in this case were prepared in advance in written form by the plaintiff in order to enter into a commission contract with a number of insurance agents such as the defendant under the name of 'Commission Payment Regulations' and became the content of the commission contract in this case, so it is a term and condition stipulated in Article 2, Paragraph 1 of the Terms and Conditions Regulation Act.
(b) On the other hand, the basis for general terms and conditions to become the content of a contract and to be binding on the contracting parties is not because they themselves have a legal or normative nature, but because the contracting parties have made an express or implied agreement to make them the content of the contract (see, for example, the Supreme Court's decision of November 26, 1985, 84 Daka 2543).
And once a contract has been validly concluded in accordance with its terms, the contractual relationship is governed by the terms as they existed at the time of the contract, and any subsequent amendment of the terms, so that the terms , If the terms are changed to the disadvantage of the other party, the effect of the amended terms shall not be deemed to affect the contract concluded before the amendment unless there are special circumstances, such as the parties agreeing to change the content of the contract by the amended terms or the contractor expressing the intention to waive the right to assert the rights under the old terms, even if the contract or the terms provide for the possibility of changing the terms.
(C) Therefore, the fact that the plaintiff and the defendant entered into the commissioning contract in this case on January 1, 2008. On January 1, 2008, the plaintiff and the defendant concluded a contract for the commission of this case, and at the time of the said contract, the plaintiff stipulated that if the plaintiff made any changes to the contents of the contract, the plaintiff should notify the defendant without delay so that the defendant could confirm the changes and obtain the defendant's handwritten signature, as shown above; and thereafter, the plaintiff revised the fee payment regulations for this case on January 2, 2009. Since it is not disputed between the parties that the amendment of the commission payment regulations in this case changed the content to not pay commission to the promoter, and there is no evidence that the plaintiff notified the defendant without delay so that the defendant could confirm the change and obtained the defendant's handwritten signature, or that the plaintiff and the defendant agreed to change the content of the contract in accordance with the amendment of the regulations in this case, it will be said that the amendment of the regulations in this case that does not pay residual recruitment commission to the promoter for insurance contracts that were recruited during the period of the commission contract and maintained after the commission is paid cannot be applied to the defendant.
(d)
Plaintiff's argument is therefore without merit.
4. CONCLUSION
The trial court's conclusion that Plaintiff's claims in this case fail for lack of merit is unreasonable, and the trial court's conclusion to that effect is reversed and Plaintiff's claims are dismissed.
4.
Practices:
Source:Thr Maeketing Economy News