[1] Whether in order for a guarantee insurance contract to be effective, it is required whether the existence of an insurance accident at the time of the contract has to be determined and not, and whether it is required to be "in good faith" and "a bona fide" (affirmative)

[2] The case holding that in case where Gap and Eul in collusion formed a lease contract with Eul as Eul and Eul as Eul's tenant in order to obtain a loan from the bank, and entered into a guarantee insurance contract which covers Gap's failure to return the lease deposit as a principal contract, and the bank extended a loan to Eul as a security, the above guarantee insurance contract constitutes a case where the lease contract as the principal contract at the time of its establishment becomes null and void as it has no effect as a false declaration of conspiracy, and thus it is null and void pursuant to Article 644 of the Commercial Act

[3] Whether all parties involved in a contract should be bona fide in order to take effect under the proviso of Article 644 of the Commercial Act, where an insurance contract, the occurrence of which becomes final and conclusive (affirmative)

[4] Where a guarantee insurance contract has no validity as an insurance contract, whether such contract can be deemed valid as a guarantee contract (negative)

[1] According to the provisions of Article 644 of the Commercial Act, if an insured event cannot occur at the time of the insurance contract, the insurance contract becomes null and void unless both parties to the insurance contract and the insured are unaware of it. Since a guarantee insurance contract basically has the nature as an insurance contract, the guarantee insurance contract has the nature as an insurance contract. Therefore, at least, the requirements of the good faith and good faith that the existence of an insured event at the time of the contract should not be determined in order to

[2] The case holding that in case where Gap and Eul in collusion entered into a guarantee insurance contract with Eul to obtain a loan from the bank without entering into an actual lease contract or receiving a lease deposit, Eul and Eul as lessee, and Gap entered into a guarantee insurance contract with the guarantee insurance company and its lease contract with Eul as the main contract, and the lessor entered into a guarantee insurance contract with Eul to pay directly insurance money to the bank designated as the beneficiary, and banks provided the guarantee insurance policy to Eul as security for the performance of the guarantee insurance contract, the above guarantee insurance contract is null and void pursuant to Article 644 of the Commercial Act on the ground that the lease contract, the main contract, at the time of its establishment, becomes invalid as it becomes invalid due to the lack of the effect of an insurance accident due to the false declaration of conspiracy.

[3] The proviso of Article 644 of the Commercial Act, where the insurer, the policyholder, and the insured are bona fide, is effective even in cases where the occurrence of the insured events is exceptionally determined, and all parties involved in the contract are in good faith on the ground of exception.

[4] The provisions on guarantee under the Civil Code also apply to a guarantee insurance contract unless contrary to its nature, but this is merely limited to the application of the legal principles on guarantee to the extent permitted by its nature, and cannot be deemed to mean that an insurance contract is equal to pure guarantee contract under the Civil Code or converted into a guarantee contract under the Civil Code. Therefore, if a guarantee insurance contract has no validity as an insurance contract, it is null and void in itself, and it cannot be deemed as valid as a guarantee contract.

[1] Article 644 of the Commercial Code / [2] Article 644 of the Commercial Code / [3] Article 644 of the Commercial Code / [4] Article 644 of the Commercial Code, Article 428 of the Civil Code

[3] Supreme Court Decision 2002Da20889 decided Aug. 20, 2004 (Gong2004Ha, 1569)

Yong-Nam Mutual Savings Bank (Law Firm Jeong, Attorneys White-jin et al., Counsel for defendant-appellant)

Seoul Guarantee Insurance Co., Ltd. (Attorney Choi Byung-hoon, Counsel for defendant-appellant)

Busan High Court Decision 2009Na5421 Decided September 29, 2009

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

1. On the first ground for appeal

A. According to the provisions of Article 644 of the Commercial Act, if the occurrence of an insured event is not possible at the time of the insurance contract, the insurance contract becomes null and void unless both parties to the insurance contract and the insured do not know it. Since the guarantee insurance contract basically has the nature as an insurance contract, the guarantee insurance contract has the nature as an insurance contract. Therefore, at least, the requirements of the good faith and good faith that the occurrence of an insured event at the time of the contract should not be determined in

According to the facts duly established by the court below, the lease contract entered into between the non-party 1 as the lessor and the non-party 2 as the lessee (hereinafter "the lease contract of this case") was concluded in collusion with the above two persons in order to obtain a loan from the plaintiff without entering into an actual lease contract or receiving a deposit for lease. The guarantee insurance contract between the non-party 1 and the defendant (hereinafter "the contract of this case") is a main contract of the lease contract of this case, and the lessor is obliged to pay the insurance money directly to the plaintiff designated as the beneficiary of the insurance money, and the plaintiff was provided with the guarantee insurance policy of performance under the guarantee insurance contract of this case as security by the non-party 2 and the non-party 2.

In light of the above circumstances, since the contract of this case, which is the main contract, is a false declaration at the time of the formation of the guarantee insurance contract of this case, cannot be seen as null and void pursuant to the provisions of Article 644 of the Commercial Act, since the contract of this case, which is the main contract, cannot be seen as null and void pursuant to the provisions of Article 644 of the Guarantee Insurance Act, since the contract of this case, which is the main contract of this case, is null and void, is the reason why it does not meet the unique requirements as an insurance contract of this case. Thus, even if the contract of this case, which is the main contract of this case, was deemed to have reached the loan

The court below is justified in holding that the guaranteed insurance contract of this case is null and void under the provisions of Article 644 of the Commercial Act.

The Supreme Court precedents cited in the grounds of appeal are inappropriate to be invoked in the instant case, unlike the instant case.

B. Meanwhile, the proviso of Article 644 of the Commercial Act provides that an insurance contract shall be valid in cases where the insurer, the policyholder, and the insured are bona fide, even in cases where the occurrence of the insured events is exceptionally fixed, and this is an exceptional reason to require all the parties involved in the contract to act in good faith (see Supreme Court Decision 2002Da20889, Aug. 20, 2004). However, in the instant case, the policyholder was aware of the invalidity of the lease contract by both the non-party 1 and the insured and the non-party 2 are aware that the occurrence of the insured events is not possible, and thus, it cannot be said that the foregoing exceptional reason is not the exception

C. Finally, the provisions on guarantee under the Civil Act are also applicable to a guarantee insurance contract unless it is contrary to its nature, but this is merely limited to the application of the legal principles on guarantee to the extent permitted by its nature, and thus cannot be viewed as an insurance contract as equal to a pure guarantee contract under the Civil Act or a conversion into a guarantee contract under the Civil Act. Therefore, if a guarantee insurance contract has no validity as an insurance contract, it is in itself null and void, and it cannot be deemed as valid as a guarantee contract.

D. Ultimately, the court below did not err in the misapprehension of legal principles as to the validity of a guaranteed insurance contract, as alleged in the grounds of appeal.

2. On the second ground for appeal

This part of the grounds of appeal is ultimately erroneous for the selection of evidence or fact-finding which belongs to the lower court’s exclusive jurisdiction, and it cannot be a legitimate ground of appeal.

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 on the bench.

Justices Yang Chang-soo (Presiding Justice)