[추심금][공2009하,1175]
[1] Whether a creditor who received a seizure and collection order against a policyholder's right to claim the cancellation refund may cancel an insurance contract under his/her own name (affirmative in principle)
[2] In a case where a creditor who received a collection order against the policyholder's right to claim the cancellation refund, files a lawsuit for payment of the collection amount against the garnishee, whether the effect of termination of the insurance contract is generated by the delivery of the copy of the written complaint (affirmative)
[1] Although a claim for refund money for cancellation of an insurance contract is a conditional right which takes effect on the condition that the policyholder exercises the right to terminate the insurance contract, it is a property right for monetary payment, which is not a property subject to the prohibition of seizure under the Civil Execution Act and other Acts and subordinate statutes, such as the Civil Execution Act, and thus is subject to the seizure and collection order. In order to claim the claim, it is essential to terminate the insurance contract, and thus, it is reasonable to deem that the creditor, who has received the collection order, exercises the right to terminate the insurance contract within the scope of the purpose of collecting the claim. Therefore, barring special circumstances, such as where the exercise of the right to terminate the insurance contract is prohibited
[2] In case where the creditor who received a collection order against the cancellation refund files a lawsuit claiming the payment of the collection money against the third party debtor based on the collection order, the written complaint contains the intent of cancellation of the insurance contract based on the collection right. Thus, it is reasonable to interpret that the effect of termination of the insurance contract arises as the duplicate of the written complaint is served on the insurer who is the other party.
[1] Article 229 of the Civil Execution Act, Article 649(1) of the Commercial Act / [2] Articles 229 and 238 of the Civil Execution Act, Article 649(1) of the Commercial Act
Plaintiff
Defendant (Attorney Kim Young-hoon et al., Counsel for the defendant-appellant)
Seoul Central District Court Decision 2006Na1992 Decided March 23, 2007
The appeal is dismissed. The costs of appeal are assessed against the defendant.
The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).
1. Concerning the creditor's right to claim the cancellation refund, a collection order is issued
A creditor who seized a monetary claim may collect the seized claim upon obtaining a collection order, and may exercise the debtor's right in his/her own name or in a court without subrogation to the extent of the purpose of collecting the claim (see Article 229(1) and (2) of the Civil Execution Act).
Therefore, barring special circumstances, such as where the exercise of the debtor's right to terminate the insurance contract is prohibited or restricted, the creditor who has been issued a collection order 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 for monetary payment, which is not a property subject to the prohibition of seizure under the Civil Execution Act and other Acts and subordinate statutes, such as the Civil Execution Act, and thus, it is essential to terminate the insurance contract in order to claim the claim. Therefore, it is reasonable to deem that the creditor who has been issued a collection order is permitted to exercise the right to terminate the insurance contract.
In the same purport, the court below is just to recognize the plaintiff's exercise of the right to terminate the insurance contract based on the plaintiff's right to collect the cancellation refund claims, and there is no error in the misapprehension of legal principles as to the scope of the right of collection by the creditor
2. As to the termination of the contract based on the collection right
If a creditor who has received a collection order as to the claim for refund for cancellation files a lawsuit claiming the payment of the collection money against a third party debtor based on the above collection order, the written complaint contains the intent of cancellation of the insurance contract based on the collection right. Therefore, it is reasonable to interpret that the effect of termination of the insurance contract occurs as a copy of the written complaint is served on the insurer who is
The judgment of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as to termination of contract based on collection right.
3. On the violation of the disposition right principle
With respect to matters falling under the elements of a substantive law which generates the legal effect, the court shall not recognize them unless the parties concerned make arguments in the pleading. However, such arguments shall not be necessarily explicitly required, and it shall be sufficient to deem that such arguments are included in the allegations of the parties in light of the purport of the parties concerned. In addition, if the existence of the allegations is recognized by the hearing of the litigation data submitted between the parties in the lawsuit, and even if the existence of such arguments is recognized through the hearing, it shall be deemed that there is such assertion and shall be the basis of the judgment (see Supreme Court Decision 2000Da48265 delivered on February 26, 2002).
According to the records, although the plaintiff did not explicitly assert the termination of the insurance contract based on the right of collection in the complaint, briefs, etc., the court below acknowledged the termination of the insurance contract based on the right of collection as being based on the above legal principles, since the plaintiff filed the lawsuit of this case seeking the payment of the collection money after receiving the seizure and collection order against the cancellation refund of each of the insurance contracts of this case, and submitted a copy of the seizure and collection order as evidence. Thus, the court below did not err in the misapprehension of legal principles as to the right of disposal or pleading as alleged
4. As to the remaining grounds of appeal
A. The defendant's attorney argues that the court below's right to terminate the contract of this case is unlawful without examining whether each of the insurance contracts of this case constitutes an insurance contract for another person. However, the above argument is obvious in the records that the defendant did not have asserted before the closing of argument in the court of final appeal as a new fact alleged by the defendant, and it does not constitute an ex officio matter. Thus, the above argument cannot be
B. Next, the defendant's attorney argues that the scope of the cancellation refund is not based on November 9, 2005, which is the date of termination of the insurance contract, and it is unlawful to calculate it as of February 17, 2006, which is the date of delivery of a copy of the complaint which is the point of termination of the insurance contract. However, there is a difference between two dates and three months, and the total amount of the cancellation refund as of November 9, 2005, which is as of February 17, 2006 as of February 17, 2006, exceeds 62,95,340 won, and at least 50,000,000 won, which is cited by the court below, and there is no error of law that does not affect the conclusion of the judgment and thus becomes the reason for reversal of the judgment.
5. Conclusion
Therefore, the appeal is dismissed, and the costs of appeal are assessed against the defendant. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Park Si-hwan (Presiding Justice)