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(영문) 대법원 1987. 6. 9. 선고 86다카216 판결

[부동산가압류이의][집35(3)민,114;공1987.8.1.(805),1129]

Main Issues

(a) Where a performance guarantee insurance contract is concluded, criteria for determining whether an insurance incident has occurred;

(b) Subject to the duty of disclosure at the time of concluding a performance guarantee insurance contract for construction works;

Summary of Judgment

A. Where a so-called performance guarantee insurance contract is concluded, whether there is an occurrence of an insurance accident causing the payment of the insurance proceeds, that is, the contractor’s nonperformance of obligation under the contract to the contractor shall be determined on the basis of the contract amount, construction period, construction contents, etc. agreed between the contractor and the insurer as the party to the guarantee insurance contract in question.

(b) Where an insurance contract to guarantee the performance of a contract for construction works is concluded, the amount of the construction and the period of construction, etc. shall generally specify the details of the contracted construction subject to the performance guarantee and determine whether the insurance accidents occur, which are important matters subject to

[Reference Provisions]

(a) Article 638 of the Commercial Act;

Creditors-Appellee

Korea Guarantee Insurance Co., Ltd., Counsel for the defendant-appellant

debtor, senior debtor, senior debtor

Attorney Go Young-gu et al., Counsel for the defendant-appellant

Judgment of the lower court

Seoul High Court Decision 85Na1471 delivered on December 17, 1985

Text

The appeal is dismissed.

The costs of appeal shall be assessed against the debtor.

Reasons

We examine the grounds of appeal.

With respect to paragraphs 1, 3

If the contractor of a contract for construction works fails to perform his/her duties under the contract with the insurer as the insured for the purpose of securing the compensation for the damage to be suffered by the contractor due to the contractor's failure, the insurer has entered into the so-called performance guarantee insurance contract with the contractor who is the insured to pay the insurance money equivalent to the above compensation amount, whether there is the occurrence of the insurance accident which is the cause of the payment of the insurance money, i.e., the contractor's failure to perform the obligation to the contractor under the contract, shall be determined based on the contract amount, construction period, construction contents, etc. agreed between the contractor and the insurer who is the party to the contract

However, according to the facts duly established by the court below, the health service contract of this case was concluded between the non-applicant long-term public health service company of this case (hereinafter referred to as the "non-applicant long-term health service company") and the non-applicant long-term health service company of this case (hereinafter referred to as the "YYI"), and the contractor with the total construction amount of 2,350,000,000 and the construction period of 100,000,000,000,000,000 won as the contract amount of 50,000,000,000 won as the contract amount of 10,000,000,000 won as the contract amount of 50,000,000,000 won as the contract amount of 50,000,000,000,000 won as the contract amount of 1,000,000,000,000 won.

Under the above view, the court below's decision that the above construction work performed by Young Health Business, a contractor, does not exceed KRW 2,350,000 under the contract of this case, and the insurance accident of this case occurred is just, and there is no error of law in misunderstanding the legal principles as to performance guarantee insurance, such as theory of lawsuit, or in misunderstanding the reasoning, and there is no argument.

With respect to the second ground:

Where a performance guarantee insurance contract for a construction contract is concluded, construction amount, construction period, etc. shall generally specify the contents of the contracted construction subject to the performance guarantee and determine the occurrence of insurance accidents, which are important matters subject to the duty of disclosure, are the same as a theory of lawsuit.

However, the creditor, as the insurer, had been aware of the contents of the instant contract, which was subject to the performance guarantee from the Young Health Business at the time of concluding the instant performance guarantee insurance contract with the Young Health Business as the policyholder, and had been aware of it. Therefore, in concluding the instant performance guarantee insurance contract, it cannot be deemed that there was a breach of duty to notify to the policyholder or the insured, or there was a fraud, and therefore, the creditor, as the insurer, did not cancel or terminate the instant performance guarantee insurance contract, and therefore, the judgment below to the same effect is just and there is no error.

With respect to the fourth point:

According to the reasoning of the judgment below, the court below acknowledged, based on its adopted evidence, that the debtor had already been aware of the fact that the object of performance guarantee under the performance guarantee insurance contract of this case was all of the plant plant plant construction works between the above applicant and the non-applicant company as of January 20, 1983, at the time of concluding the joint and several guarantee contract with the creditor who is the insurer and the insurer of this case with respect to the claim amount to be borne by the insurer who is the policyholder due to the payment of the insurance money of this case. Thus, the court below's fact-finding is justified, and there is no error of law of incomplete deliberation such as theory of lawsuit. Thus, this issue is without merit.

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Jin-Post (Presiding Justice)

따름판례

- 대법원 1998. 6. 12. 선고 97다53380 판결 [공1998.7.15.(62),1872]

- 대법원 2002. 7. 26. 선고 2001다36450 판결 [공2002.9.15.(162),2038]

평석

- 이행보증보험계약의 의무불이행 및 고지의무의 대상 서헌제 韓國商事判例學會

관련문헌

- 양승규 전문건설공제조합의 보증에 관한 법적 고찰 보험법연구 (4) (2002.07) / 삼지원 2002

- 장덕조 보증보험의 우연성과 채권담보적 기능 : 공제와 관련하여 민사판례연구 36권 / 박영사 2015

- 한국. 대법원 법원행정처 재판실무편람 제11호: 보험재판실무편람 법원행정처 2007

- 김형천 건설공제조합의 하자보수보증의 법적 성격 및 건설공제조합과 주계약상 보증인 사이의 구상권에 관하여 판례연구 21집 / 부산판례연구회 2010

- 차영민 보증보험의 법적 성질 민사판례연구 28권 / 박영사 2006

- 양석완 보증보험에 있어서 피보험자(채권자)의 고지의무에 관한 고찰 비교사법 18권 2호 / 한국비교사법학회 2011

- 장덕조 보증보험에서의 고지의무와 기망행위 보험법연구 (5) (2003.06) / 삼지원 2003

- 윤보옥 보험계약자의 고지의무 고시연구 24권 10호 (97.09) / 고시연구사 1997

- 김성태 중복보험과 고지의무 민사판례연구 27권 / 박영사 2005

- 장덕조 보증보험의 법적성질에 대한 의문의 제기 보험법연구 (4) (2002.07) / 삼지원 2002

- 이무상 보증기간의 경과와 계약보증금의 청구 건축관련판례 50선 : 대구판례연구회 300회 발표 기념 건축관련판례 50선 / 대구판례연구회 2012

- 최동렬 보증보험자와 주계약상 연대보증인 사이의 구상관계 BFL 제31호 / 서울대학교 금융법센터 2008

- 김헌무 중복보험과 고지의무 상사판례연구 17집 / 한국상사판례학회 2004

- 김성엽 건설공제조합과 주계약상 보증인 사이의 구상관계 건축관련판례 50선 : 대구판례연구회 300회 발표 기념 건축관련판례 50선 / 대구판례연구회 2012

참조조문

- 상법 제638조

- 상법 제651조

원심판결

- 서울고등법원 1985.12.17 선고 85나1471 판결