[2] Whether a creditor who received a collection order against a policyholder's cancellation refund on an insurance contract may claim a payment of the claim under his/her own name by exercising the obligor's right to terminate the insurance contract (affirmative in principle)

1. Based on its adopted evidence, the court below acknowledged the following facts: the non-party entered into the insurance contract of this case with the defendant on March 26, 2008; the plaintiff on April 21, 2008 and October 27, 2008 based on the executory exemplification of a notarial deed; the non-party received a claim seizure and assignment order for the present or future claim claims against the defendant, etc. (hereinafter "each assignment order of this case"); the Seoul Guarantee Insurance Co., Ltd. (hereinafter "Seoul Guarantee Insurance") delivered each assignment order to the defendant around the time when the assignment order of this case was issued; on May 3, 2011, the non-party received all the claim claims for insurance money of this case against the defendant and the claim seizure and collection order (hereinafter "the collection order of this case"); on the premise that Seoul Guarantee Insurance Co., Ltd. was delivered to the defendant around that time; on May 20, 2011, the defendant sent the insurance contract of this case to the defendant on May 21, 2016.

Furthermore, the court below held that, in light of the following: (a) although it cannot be deemed that each of the instant assignment orders was included in the claim for insurance money indicated as the claim for cancellation refund based on the premise that an insurance contract is terminated; (b) the claim for insurance money premised on the existence of an insurance contract and the claim for cancellation refund premised on the termination of an insurance contract cannot be compatible with each other; (c) the obligor’s policyholder cannot arbitrarily terminate the insurance contract that has the effect of extinguishing the claim for insurance money itself; (d) such restriction should be deemed to be the same as the obligee who received a collection order on the claim for cancellation refund; and (c) the collection order on the claim for cancellation refund based on the issuance of a seizure and assignment order after the issuance of a seizure and assignment order on the claim for insurance money is premised on the premise that the effect of the preceding assignment order is nullified; and (e) the Defendant is liable to pay the insurance money to the Plaintiff due to the occurrence of the insurance accident against the Nonparty.

2. However, we cannot accept the above judgment of the court below as it is.

A. Where a seizure of a policyholder's claim for insurance money is conducted, even if the obligor disposes of the claim attached to the obligor, it cannot be set up against the obligee, and the third obligor cannot set up against the obligee as such action. However, the attachment is not binding on the obligor in relation to the insurance contract which is the cause of the above seizure claim or the third obligor's disposition. Thus, the obligor or the third obligor can terminate the insurance contract itself, which is a basic contractual relationship, and as long as the insurance contract which is the basic contractual relationship between the obligor and the third obligor has been terminated, the order of seizure for this purpose shall also become null and void (see Supreme Court Decision 2003Da29456, Jan. 26, 2006, etc.).

Meanwhile, barring any special circumstance, such as where the exercise of the debtor's right to terminate the insurance contract is prohibited or restricted, a creditor who has received a collection order as to such claim may exercise the debtor's right to terminate the insurance contract in his/her own name and claim payment of the claim, as a property right aimed at paying money, which is not prohibited property under the Civil Execution Act (amended by Act No. 10539, Apr. 5, 201; Act No. 10539, Jul. 6, 2011); thus, it is subject to seizure and collection order. In order to claim the claim, the creditor who has received the collection order is essential to terminate the insurance contract, and thus, is allowed to exercise the right to terminate the contract. Therefore, barring any special circumstance, such as where it is prohibited or restricted from exercising the debtor's right to terminate the contract, the creditor who has received the collection order can claim payment of the claim by exercising the debtor's right to terminate the insurance contract (see Supreme Court Decision 2007Da2616

B. As recognized by the lower court, each of the instant assignment orders did not include a claim for cancellation refund of the claim subject to seizure. Examining the facts acknowledged by the lower court in light of the aforementioned legal doctrine, even if there is a seizure of the claim for insurance money, the Nonparty or the Defendant may terminate the relevant contract relationship itself, which is the cause of the instant seizure claim. Furthermore, the written request for remittance of the attached reserve where the Seoul Guarantee Insurance, which received the instant collection order regarding the claim for cancellation refund, claimed the payment of the collection amount to the Defendant, constitutes an intent of termination of the insurance contract based on the collection right. Therefore, it is reasonable to interpret the effect of termination of the instant contract as the said written request for remittance was delivered to the Defendant. Therefore, as long as the instant insurance contract

C. Nevertheless, the court below determined otherwise on the grounds stated in its reasoning. In so doing, the court below erred by misapprehending the legal principles as to the validity of the collection order in this case, and the ground of appeal assigning this error is with merit.

3. Therefore, the part of the judgment below against the defendant is reversed, and that part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Min Il-young (Presiding Justice)