[구상금][공1997.12.15.(48),3770]
[1] Requirements for the reversal of presumption under Article 679(1) of the Commercial Act
[2] The validity of a pledger's act in violation of Article 352 of the Civil Code
[1] The purport of Article 679 of the Commercial Code stipulating that when the insured transfers the subject matter of the insurance, the right arising from the insurance contract shall be presumed to have been transferred at the same time when the subject matter of the insurance is transferred, the right under the insurance contract has been transferred at the same time in relation to the transferor of the transferee, and the parties' ordinary intent is presumed to have been presumed and this is affirmed from the socioeconomic point of view. The presumption is reversed if it is proved that
[2] Article 352 of the Civil Code provides that a pledger shall not extinguish a right subject to a pledge without the consent of the pledgee, or shall not make any change detrimental to the rights of the pledgee. Thus, even if the pledgee and the third obligor have committed an act of extinguishing a right subject to the pledge, it is invalid in relation to the pledgee, and thus, a third party, not the pledgee, cannot assert its invalidity, unless there are special circumstances.
[1] Article 679(1) of the Commercial Act / [2] Article 352 of the Civil Act
[1] Supreme Court Decision 96Da6998 delivered on May 28, 1996 (Gong1996Ha, 1991)
International Fire and Marine Insurance Co., Ltd. (Seo Law Firm, Attorneys Park Sang-chul et al., Counsel for the plaintiff-appellant)
Dongbu Fire Marine Insurance Co., Ltd. (Attorney Gyeong-soo et al., Counsel for the plaintiff-appellant)
Supreme Court Decision 95Da52505 Delivered on July 26, 1996
Seoul District Court Decision 96Na36189 delivered on July 4, 1997
The appeal is dismissed. The costs of appeal are assessed against the plaintiff.
We examine the grounds of appeal.
On the first ground for appeal
Article 679 of the Commercial Act provides that the right arising from an insurance contract shall be presumed to have been transferred simultaneously when the insured transfers the subject matter of the insurance to the assignee. The purport of the insurance is that the right under the insurance contract was transferred together in relation to the transferor of the assignee if the subject matter of the insurance is transferred to the assignee, and that the presumption was affirmed from a socioeconomic point of view (see Supreme Court Decision 91Da1158 delivered on August 9, 1991, Supreme Court Decision 92Da852 delivered on April 13, 1993, Supreme Court Decision 96Da698 delivered on May 28, 1996). The presumption is reversed if it is proved that the non-party 1 or the non-party 2 did not have an intention to succeed to the first fire insurance contract of this case, and therefore, the first fire insurance relationship of this case cannot be viewed as the second fire insurance relationship of this case since the non-party 2 did not succeed to the above non-party 1 and the second fire insurance relationship of this case.
The decision of the court below to the same purport is just and there is no error of law such as inconsistent reasoning, misunderstanding of legal principles, or violation of the rules of evidence. There is no ground for appeal.
On the second ground for appeal
As long as the first fire insurance contract of this case was concluded between the non-party 1 and the defendant, even if the non-party 2 or the non-party 1 operated the three-dimensionals as a partnership business, the above non-party 2, who is not a party to the first fire insurance contract, cannot be deemed to have a share in the same business contract as to the rights and obligations under the first fire insurance contract, and the above non-party 2, who is not a party to the first fire insurance contract, also cannot be deemed to have a share in the same business contract. In addition, the plaintiff's argument that the first fire insurance and the second fire insurance are in a overlapping insurance relationship within the scope of the share of the above non-party 2, is a new argument at the appellate court, and it does not constitute a legitimate ground for appeal. The court below's decision not to examine
On the third ground for appeal
Article 352 of the Civil Act provides that a pledgee cannot extinguish a right under the pledge without the consent of the pledgee, or make any change to the extent that the pledgee could not harm the rights of the pledgee, is to protect the exclusive control power over the exchange value of the claim subject to the pledge. Therefore, even if the pledgee and the third obligor have committed an act of extinguishing the right under the pledge, such act is invalid in relation to the pledgee, and therefore, a third party, not the pledgee, cannot assert its invalidity, unless there are any special circumstances.
In the same purport, the court below rejected the plaintiff's assertion that the agreement that the above non-party 2 did not succeed to the first fire insurance contract without the consent of the non-party Industrial Bank of Korea (the pledgee) was in violation of Article 352 of the Civil Code and thus null and void since the right of pledge was established on the insurance claim based on the first fire insurance contract of this case, and thus, the court below did not err by misapprehending the legal principles as to the lawsuit.
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 on the bench.
Justices Lee Im-soo (Presiding Justice)