The legal nature of the guaranteed insurance contract, and whether the provisions of the Civil Act on the right of indemnity between joint guarantors apply to the insurer under the guaranteed insurance contract and the guarantor under the guaranteed insurance contract (negative)

The performance (payment) guarantee insurance is non-life insurance with the insurer's acceptance of the compensation for the loss suffered by the obligee who is the insured due to the default on the contract of the obligor as the policyholder, and is practically aimed at the same effect as the guarantee contract with the nature of the guarantee, and the provisions of the Civil Act concerning the guarantee between the insurer and the obligor shall apply mutatis mutandis. However, such guarantee insurance contract and the guarantee contract with the main contract are different from the basic legal provisions governing the contractual relationship, so it is difficult to regard the insurer under the guarantee insurance as the joint guarantor in the same position as the guarantor under the guarantee insurance contract. Thus, Article 448 of the Civil Act concerning the right to indemnity between the insurer and the joint guarantor under the main contract cannot be deemed to apply mutatis mutandis as a matter of course.

Article 448 of the Civil Act, Article 638 of the Commercial Act

Supreme Court Decision 95Da46265 delivered on October 10, 1997 (Gong1997Ha, 3380) Supreme Court Decision 98Da53707 delivered on June 8, 1999 (199Ha, 1335)

Seoul Guarantee Insurance Co., Ltd. (Attorney So-young et al., Counsel for defendant-appellee)

Defendant

Changwon District Court Decision 99Na12448 delivered on August 29, 2000

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

1. According to the reasoning of the judgment below, the court below rejected the plaintiff's joint and several surety's claim that the non-party 1 and the non-party 2 were liable for damages incurred by the non-party 1 and the non-party 2 to the above non-party 1 and the non-party 1 and the non-party 2 were liable for damages incurred by the non-party 1 and the non-party 3 to the above non-party 1 and the non-party 2 were liable for damages incurred by the non-party 1 and the non-party 2 to the non-party 3 and the non-party 1 and the non-party 2 were liable for damages incurred by the non-party 3 and the non-party 1 and the non-party 2 were liable for damages incurred by the non-party 3 and the non-party 1 and the non-party 2 were liable for damages incurred by the non-party 3 and the non-party 1 and the non-party 3 were liable for damages incurred by the non-party 1 and the non-party 1 and the defendant 98.

2. The performance guarantee insurance is non-life insurance that the insurer takes over the compensation of the loss suffered by the creditor who is the insured due to the non-performance of the obligation under the main contract of the debtor who is the policyholder, and is practically aimed at the same effect as the guarantee contract with the nature of the guarantee, and the provisions on the guarantee under the Civil Act between the insurer and the debtor are applied mutatis mutandis (see, e.g., Supreme Court Decisions 95Da46265, Oct. 10, 197; 98Da53707, Jun. 8, 1999). However, the guarantee contract attached to the guarantee insurance contract and the main contract are different from the basic legal provisions governing the contract relationship, and it is difficult to regard the insurer under the guarantee insurance as a joint guarantor in the same position as the guarantor under the main contract. Thus, Article 448 of the Civil Act on the right to indemnity between the insurer and the guarantor under the main contract cannot be applied mutatis mutandis as a matter of course.

In addition, the insurer's receipt of the premium in return for the risk burden and the exercise of the right to indemnity against the policyholder cannot be recognized unless there is a special agreement, since it is contrary to the general principle of insurance. According to Article 10 (1) of the General Clause of Guarantee Insurance (Evidence A8) of the performance (payment), the company has the right to indemnity against the policyholder when it has paid the insurance money, and the insured has the right to indemnity against the policyholder to the extent that it does not harm the interests of the insured, and there is no provision that the insurer has the right to indemnity against the guarantor of the principal contract under the above insurance clause, and there is no special agreement as to the right to indemnity, even after examining other records.

Therefore, the plaintiff, as the insurer, cannot exercise the right of indemnity against the guarantor under the insurance contract as a joint guarantor under the principal contract, apart from exercising the right of indemnity against the guarantor under the insurance contract. Thus, the decision of the court below to the same purport is just, and there is no error of law such as misunderstanding of legal principles as otherwise alleged in the ground of appeal.

3. Therefore, the appeal is dismissed, and all 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 Son Ji-yol (Presiding Justice)