[구상금][공1992.11.15.(932),2972]
(a) The case holding that in a performance guarantee insurance contract, if the contractor was to recover part of the contract quantity not commenced under the agreement between the parties to the contract because the contractor was unable to supply the goods by the due date, it constitutes an insured incident and it does not constitute "when the principal contract has been significantly modified" under the terms and conditions of the insurance
B. Whether the insurer is liable to pay the insurance money if the insured cancels the principal contract after the claim for the insurance money within the insurance period (affirmative)
C. The case holding that the reasons for reducing the liability of the joint and several sureties do not constitute a ground for the reduction of the liability of the joint and several sureties on the ground that the joint and several sureties of the contractor under the performance guarantee insurance contract as referred to in the above "A" guaranteed the obligation of indemnity without any benefit, and the contractor and the insurance company did not inform the contractor of the problems in the
A. The case holding that if Party A entered into an insurance contract for the manufacture and supply of B and gas-related gas-related machinery, and Party A failed to supply it by the due date, and Party A recovered the quantity equivalent to 38 percent of the total contract quantity, which was not yet commenced, under the agreement with Party B, the part equivalent to Party B 38 percent of the above contract should have been cancelled on the ground of the delay of the performance of Party B, and this constitutes a case where the occurrence of an insurance accident occurred, and it cannot be seen as “when the contents of the main contract have been significantly modified” under the performance guarantee insurance clause.
B. The insurance clauses stipulate that “the insured shall cancel or terminate the principal contract before claiming the insurance money,” but even if the insured rescinded the principal contract after claiming the insurance money, as long as the insured cancels the principal contract on the ground of delayed performance within the insurance period, the insurer is liable to pay the insurance money to the insured.
C. The case holding that under the performance guarantee insurance contract under the above "A", the joint and several surety of Gap cannot be exempted from liability for the guarantee because the joint and several surety of Eul was jointly and severally guaranteed with respect to the indemnity obligation of Eul without any benefit, and even if Eul or the surety insurance company knew that there are many problems in the implementation of the above contract, it cannot be deemed that such circumstance alone constitutes a ground for reducing the guarantee liability of the joint and several surety.
(b)Article 665(c) of the Commercial Code;
Korea Guarantee Insurance Co., Ltd., Counsel for the plaintiff-appellant
[Defendant-Appellee] Defendant 1 et al., and 3 others, Counsel for defendant-appellee and 1 other, Counsel for defendant-appellee
Busan High Court Decision 91Na7187 delivered on April 22, 1992
All appeals are dismissed.
The costs of appeal shall be assessed against the defendants.
The grounds of appeal are examined.
On the first ground for appeal
According to the reasoning of the judgment below, the court below acknowledged the non-party 1 company's 735,00,00 won for gas production and supply contract between the non-party 1 company and the non-party 2 company since August 25, 1989 to December 20 of the same year, since the non-party 1 company did not enter into an insurance contract between the plaintiff company and the non-party 73,50,000 won for the same period as the above contract period, but the non-party company did not enter into an insurance contract between the non-party 2 and the non-party 1 company's performance guarantee contract to compensate the above losses within the limit of the insurance amount if the non-party company did not perform the contract, and the non-party 2 company did not perform the above contract's duty of indemnity against the plaintiff company for the non-party 1 company's non-party 3's non-party 1's non-party company's non-party 1's non-party company's non-party 2's delivery of insurance amount.
In addition, it is difficult to automatically extend the payment period to the extent that the non-party company has extended the first payment period.
In addition, in light of the records, it is proper that the court below judged that the non-party company failed to comply with the payment period because the non-party company failed to prepare and publicly notify the production approval drawing set up at the time to the defendant company, and that the soil in the work site of the defendant company was lost for more than one month, or that it cannot be deemed that the non-party company engaged in the business unfairly in the art site workers in the art, and that there was no error of law by mistake of facts against the rules of evidence, such as the theory of lawsuit, since the first payment period was five days prior to the second payment period, and the concentration of the second payment period was taken in the southnam area.
All arguments are without merit.
On the second ground for appeal
In theory, the non-party company agreed on November 7, 1989 to extend the payment period of the third volume between the defendant company and the non-party company on January 20, 1990, so this part is not a debt subject to compensation, and it falls under the case where there was a significant change in the contents of the main contract. Therefore, even though this part of the insurance contract has been invalidated, the court below neglected its judgment. However, according to the reasoning of the judgment below, it is clear that the court below rejected the argument by deciding that the non-party company had extended only the first payment period to the defendant company, and in light of the records, the above fact-finding by the court below is legitimate, and therefore there is no reason to discuss it.
On the third ground for appeal
In light of the records, it is reasonable that the court below recognized that the non-party company cancelled the above contract to the defendant company on December 20, 1989, the insurance period of which expires, and there is no error of law by misconception of facts in violation of the rules of evidence, such as theory of litigation, in the process of
According to the terms and conditions of insurance, the insured shall cancel or terminate the contract before claiming the insurance money, and even if the non-party company, the insured, rescinded the contract, the main contract after claiming the insurance money, as duly established by the court below, as long as the non-party company cancels the contract due to delayed performance of the defendant company within the insurance period, the plaintiff, the insurer, shall be liable to pay the insurance money to the non-party company, the insured, and there is no error in the misapprehension of legal principles as to the cancellation of the contract, such as the theory of lawsuit. There
On the fourth ground
The theory of lawsuit provides a joint and several surety for the defendant company's indemnity liability without any benefit. The non-party company or the plaintiff knew that there are many problems with the implementation of the above contract, and notified it to the joint and several surety. On the other hand, the non-party company has no less than KRW 100 million from the original contractor, and again received double benefit from the plaintiff, and the non-party company has received the insurance proceeds of this case from the original contractor, so the remaining defendants' guarantee liability should be reduced to a reasonable extent. However, the remaining defendants except the defendant company have jointly and severally guaranteed the indemnity liability of the defendant company without any benefit, and the non-party company cannot be exempted from the guarantee liability because the remaining defendants except the defendant company jointly and severally guaranteed the indemnity liability of the defendant company without any benefit, and even if the non-party company or the plaintiff did not inform the defendant company that there are many problems with the implementation of the above contract, such circumstance alone does not constitute a ground for reduction of the joint and several surety's liability. Therefore, it is correct in the misapprehension of legal principles or incomplete deliberation.
A party member's precedent cited in the theory of the lawsuit is a different issue and it cannot be compared to the opinion of the case.
There is no reason for this issue.
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 Yoon Jae-ho (Presiding Justice)