[보험금][공2014하,2108]
In liability insurance, the relationship between the insured’s insurance claim against the insurer and the third party’s direct claim / In a case where the insurer of liability insurance deposits the enforcement on the grounds of competition between the insured’s insurance claim and the provisional seizure on the insured’s insurance claim, whether it can be asserted against the third party who has a direct claim under Article 724(1) of the Commercial Act
Article 724(1) of the Commercial Act provides that the insured’s right to claim directly against the insurer under Article 723(1) and (2) of the Commercial Act and the relationship between the third party’s right to claim directly against the insurer under Article 724(2) of the Commercial Act and the third party’s right to claim directly against the insurer under Article 724(2) of the Commercial Act. Thus, the insurer cannot set up against the third party who has the right to claim directly against the insured with the payment of the insurance money before the third party receives the compensation from the insured. However, the execution deposit made by the insured for concurrent reasons such as provisional seizure of the right to claim against the insurer according to the insurance contract is limited to the nature of the repayment deposit against the insured. Therefore, it cannot be deemed that the third party’s right to claim directly against the insurer under Article 724(2) of the Commercial Act is extinguished due to the execution deposit.
Articles 723(1) and (2), 724(1) and (2) of the Commercial Act; Article 487 of the Civil Act; Articles 248(1) and 291 of the Civil Execution Act
[Plaintiff, Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellant)
Seoul High Court Decision 200Na1448 decided May 1, 200
Samsung Fire and Marine Insurance Co., Ltd. (Seoul General Law Firm, Attorneys Lee Il-il et al., Counsel for the plaintiff-appellant)
Seoul High Court Decision 2013Na2014697 decided March 13, 2014
The appeal is dismissed. The costs of appeal are assessed against the defendant.
The grounds of appeal are examined.
1. Regarding ground of appeal No. 1
Article 724(1) of the Commercial Act provides that Article 724(1) of the Commercial Act provides that with respect to the relationship between the insured’s insurance claim against the insurer and the third party’s direct claim against the insurer under Article 723(1) and (2) of the Commercial Act, Article 724(2) provides that the third party’s direct claim shall take precedence over the insured’s insurance claim. Thus, the insurer cannot set up against the victim who has a direct claim with payment of the insurance claim against the insured before the third party receives compensation from the insured (see Supreme Court Decision 94Da28093 delivered on September 26, 1995). However, since the execution deposit on the ground of competition, such as provisional seizure of the insurance claim against the insurer under an insurance contract, it cannot be deemed that the third party’s direct claim against the insurer under Article 724(2) of the Commercial Act is extinguished by such execution deposit, and therefore, it cannot be directly set up against the third party under Article 724(1) of the Commercial Act.
In light of the above legal principles and the records, the court below is just in rejecting the defendant's assertion that the defendant's obligation to directly pay insurance proceeds to the plaintiff under Article 724 (2) of the Commercial Act was extinguished since the defendant deposited KRW 329,760,874, which is the total amount of insurance proceeds provisionally seized under Article 291, 248 (1) of the Civil Execution Act on July 8, 2013, the defendant's obligation to directly pay insurance proceeds to the plaintiff under Article 724 (2) of the Commercial Act was extinguished, and it is not erroneous in the misapprehension of legal principles as to the enforcement deposit, contrary to what is alleged in the grounds of appeal.
2. Regarding ground of appeal No. 2
For the reasons indicated in its holding, the court below rejected the Defendant’s assertion on the premise that the Defendant, the insurer who entered into a responsible insurance contract with the Nonparty, is liable to compensate the Plaintiff for the damages incurred by the instant fire pursuant to Article 724(2) of the Commercial Act, on the ground that it is reasonable to deem that the Nonparty, the occupant of the first floor of the instant building, failed to take protective measures to the extent generally required by social norms in proportion to the risk of the structure kept therein, and that the instant fire was caused by the said defect.
In light of the relevant legal principles and records, the above measures of the court below are just and acceptable, and contrary to the allegations in the grounds of appeal, there were no errors by misapprehending the legal principles on the responsibility of structures and the burden of proof, which affected the conclusion of
3. Conclusion
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 Shin Young-chul (Presiding Justice)