[2] In a case where Gap corporation entered into an automobile sales contract with Eul corporation, etc., which is a manufacturer or seller of automobiles, and entered into an installment financing loan agreement with Byung Insurance Company, which is a installment financing company, as security, after concluding an automobile sales contract with Byung Insurance Company, the case holding that the said guarantee insurance contract was the principal contract which is subject to a guarantee of installment financing loan agreement, and it was concluded with Jung Company as the insured

1. The term "guarantee insurance" means a non-life insurance contract, the purpose of which is to accept by an insurer the recovery of the loss to be incurred by the insured due to a policyholder's non-performance of a certain legal relationship with the insured, and it aims at the same effect as a guarantee contract with the nature of a guarantee, in substance, at the same time as an insurance contract. As such, a guarantee insurance contract aims at the same effect as a guarantee contract, under the premise of a legal relationship between a policyholder and the insured, a policyholder, who is a debtor, fails to perform his/her obligation under a main contract, etc., and thereby compensates the loss incurred by the insured who is a creditor, within the scope of the amount of the insurance contract, and within the scope of the amount of the insurance contract. Therefore, if a guarantee insurance contract has its validity, the main contract, etc. shall be valid between the policyholder and the insured (see Supreme Court Decisions 89Meu25912, May 8, 190; 97Da14903, Nov. 13, 1998).

2. Review of the reasoning of the lower judgment and the evidence duly admitted by the lower court reveals the following facts.

A. The primary defendant (hereinafter “the defendant”) handled only the installment sale guarantee insurance for the automobile, the insured of which is the selling company, with the approval of the handling of the installment sale guarantee insurance by the Financial Supervisory Service as the principal contract for the automobile installment sales contract. Since January 1, 1996, as the government permitted the establishment of a new installment financing company from January 1, 1996, it was necessary to develop a new guarantee insurance product that guarantees the installment financing obligation of the automobile buyer. As from January 3, 1996, it was to make a special terms and conditions of installment financing that grant the insurer the right to claim insurance money in addition to the right to receive the insurance money, and to use it in addition to the existing installment sale guarantee insurance clause.

B. Article 1 of the General Terms and Conditions of Sales Guarantee Co., Ltd., which the Defendant previously used, provides that “The damages suffered by the seller (hereinafter “insured”) due to the failure of the policyholder to perform the obligation of installment payment as stipulated in the installment sales contract entered in the insurance policy (hereinafter “principal contract”) and the seller shall be compensated for in accordance with the terms and conditions,” and the main text of Article 6(1) provides that “The insurance money to be paid by the company shall be the amount of unpaid installment payment at the date of payment as stipulated in the principal contract.”

However, with respect to the scope of application of Article 1 of the Special Terms and Conditions of Installment Financing, the Defendant’s application of the said Special Terms and Conditions provides that “This Special Terms and Conditions shall apply to cases where a policyholder is paid installment financing from a bank, insurance company, or installment financing company (hereinafter “financial institution”) in accordance with the installment sale contract entered into on the insurance policy,” and Article 2 provides that “Notwithstanding the provisions of Article 1 of the General Terms and Conditions, a policyholder, who is a buyer, fails to perform the installment financing obligations stipulated in the monetary loan agreement entered into with a financial institution under the installment sale contract entered into with a financial institution under the installment sale contract entered into with the financial institution (hereinafter “main contract”), thereby compensating for any loss incurred by a financial institution in accordance with the terms and conditions stated in the insurance policy,” and Article 3(2) provides that Article 6 of the General Terms and Conditions of Installment Sales Guarantee Insurance shall apply as a monetary loan contract, and the term “unrepaid amount” as a substitute for the amount of the

C. The Defendant entered into an installment agreement with the conjunctive Defendant Amcar Co., Ltd. and Hyundai Automobile Co., Ltd. (hereinafter collectively referred to as “automobile selling company”), and agreed that the Defendant may accept the installment payment agreement if the automobile selling company, through the installment agreement, sells an automobile in installments and lets the buyer subscribe to the installment sales guarantee insurance, and if the buyer asks the buyer to attach the installment payment agreement to the installment sales guarantee insurance in order to receive the installment payment from the installment financing company.

D. The two and speed tourism Co., Ltd. (the trade name after the modification: the New World Tourism Co., Ltd.; hereinafter referred to as “non-party company”) submitted to the Defendant a copy of the sales contract on the nine motor vehicles from January 23, 2007 to September 2007, stating the price and the method of payment as shown in the attached Table 3 of the judgment below as to the nine motor vehicles, and made an offer of the installment sales guarantee insurance for each nine motor vehicles. The Defendant entered into the installment sales guarantee contract for each nine motor vehicles between the non-party company and the non-party company in accordance with the above installment agreement from January 23, 2007 to September 28, 207, as shown in the attached Table 4 of the judgment below (hereinafter collectively referred to as the “instant guarantee insurance contract”).

The application for the installment sale guarantee insurance submitted by the non-party company to the defendant at the time stated the contents of the contract as the automobile selling company, and the contents of the guarantee as the payment guarantee for the installment sale, and stated the installment sale amount and the installment period. However, the application of the special terms and conditions for installment financing was stated in the main contract, and as such, the installment sale guarantee agreement and the special terms and conditions for installment financing were indicated in the main contract were indicated as "Installment financing". The defendant issued an insurance policy concerning the guarantee insurance contract of this case (hereinafter referred to as the "insurance policy of this case"). The insurance policy of this case was also stated as the automobile selling company, as the contents of the guarantee, as the automobile selling company, as the contents of the main contract were stated as the payment guarantee for the installment sale amount and the installment period were stated as the contents of the main contract, but the installment form was indicated as installment financing. In addition, the insurance policy of this case was accompanied by the general terms and conditions of installment sale guarantee insurance and the special terms and conditions of installment financing.

E. Upon receipt of the instant insurance policy from January 2007 to September 2007, the Plaintiff agreed to lend KRW 92,00,000 to KRW 118,360,000 for each automobile (hereinafter collectively referred to as the “instant loan agreement”).

3. The following circumstances revealed by such factual basis: ① the Defendant and the non-party company entered into a guarantee insurance contract and the instant insurance contract into with the non-party company as an automobile dealer at the time of entering into the guarantee insurance contract; however, the special terms and conditions for installment financing apply pursuant to the agreement between the Defendant and the non-party company; thus, the Defendant would compensate the Plaintiff for losses incurred if the non-party company, which is the policy holder, fails to perform installment financing obligations under the monetary loan contract entered into with the Plaintiff, which is a financial institution; ② the Defendant would only handle the installment sales guarantee insurance with the authorization for handling the installment sales contract and make the special terms and conditions available for the existing installment sales insurance without taking into account the fact that the non-party company would be deemed to have concluded the guarantee insurance contract without taking into account the fact that the non-party company would have received the installment financing contract as a part of the guarantee insurance contract, regardless of whether the purchaser would be paid or not, and thus, the Defendant would be deemed to have concluded the installment sales contract with the non-party company as the condition for installment sales.

Nevertheless, the court below concluded that the main contract of the guaranteed insurance contract of this case was an installment sales contract between the non-party company and the automobile selling company, and that there was no installment sales contract, which is an installment sales contract between the non-party company and the automobile selling company, claims for insurance proceeds under the guaranteed insurance contract of this case were not occurred. Thus, the court below erred by misapprehending the legal principles on the main contract of the guaranteed insurance contract

4. Therefore, without examining the remaining grounds of appeal by the Plaintiff and the Defendant’s grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices

Justices Kim Shin (Presiding Justice)