Insurance money payment relationship in guarantee insurance contracts;

In the form of a non-life insurance contract, the purpose of which is to take over by the insurer the recovery of the damage to be suffered by the insured (creditors in the principal contract) due to the non-performance by a policyholder having any legal relationship with the insured, is to carry out the same effect as a guarantee contract with the nature of the guarantee. Therefore, a guarantee insurance contract is to provide for the damage suffered by the insured in accordance with the terms of an insurance contract and within the scope of the amount of the insurance contract, as stipulated in the terms of an insurance contract, which assumes the legal relationship of the principal contract, etc

Article 638 of the Commercial Act, Article 428 of the Civil Act

Attorney Kim Sung-soo et al., Counsel for the plaintiff-appellant

Attorney Yang Young-young et al., Counsel for the defendant

Pohang Steel Co., Ltd.

Gwangju High Court Decision 88Na4002 delivered on August 24, 1989

The judgment below is reversed, and the case is remanded to the Gwangju High Court.

We examine the grounds of appeal.

1. The facts acknowledged by the court below are as follows.

A. On September 4, 1986, the Plaintiff agreed to set the five engines of this case between the Intervenor and the Intervenor (hereinafter referred to as the “ Intervenor”) as KRW 132,00,000, and enter into a contract to import and supply them to the Intervenor from December 30 of the same year, and the down payment of KRW 52,80,000,000, out of KRW 79,200,000, which was paid to the Intervenor, was paid as the remainder of KRW 39,60,000 when the bill of lading against the instant engine was issued to the Intervenor.

B. On November 12, 1986, the Plaintiff concluded the instant payment contract guarantee insurance contract with the Defendant and the insured as the Intervenor, the insurance money of KRW 52,800,000,000, and from October 4, 1987 to January 30, 1987, and agreed that the Defendant shall pay KRW 52,80,000 to the Intervenor when the Plaintiff did not properly implement the said engine supply contract.

C. When the Plaintiff and the Intervenor conclude the instant engine import supply contract, the Plaintiff delivered to the Intervenor the finished product which attached the automatic burner system and auxiliary power plant to the instant engine by December 30, 1986, but the remainder was understood as being paid by the bank as a promissory note, and if the Plaintiff violated the said contract, the Plaintiff agreed to pay as penalty the sum of the down payment received as a penalty.

D. By January 30, 1987, when the Plaintiff failed to deliver the finished product engine to the intervenors, and the Defendant paid the above insurance money to the intervenors, the Plaintiff issued the instant check of shares to the Defendant in order to secure the Defendant’s claim for reimbursement against the Plaintiff.

E. On January 9, 1987, the Plaintiff ordered the instant engine in the name of the Trade Company Co., Ltd. that committed an import license, and entered into the bonded warehouse, and then the Plaintiff sent a bill of lading to the Intervenor, and requested payment of KRW 39,60,00,00 which is half of the remaining amount under the above contract, and the Plaintiff refused to accept a promissory note issued at its face value on the ground that the Plaintiff did not go through customs clearance of the instant engine for this reason.

F. After that, the Plaintiff and the Intervenor received one promissory note from the Intervenor on April 20, 1987, according to arbitration between the issuing bank of the credit and the trading company of the trade company that committed the above act while urging the other party only to perform their obligations, and thus, the Plaintiff received one promissory note from the Intervenor on March 20, 1987, in lieu of half of the remainder payment. The remainder of KRW 39,600,000,000 from the Plaintiff was driven by the customs office due to the Plaintiff’s customs clearance procedure for the engine of this case and completed the trial operation of the engine of the finished product of this case until May 30 of the same year, and at the same time delivered it to the Intervenor along with the defective performance guarantee certificate and at the same time, the bank that had the payment date been paid as a promissory note after 100 days from the Intervenor also agreed to amend part of the contents of the above engine import supply contract.

G. On May 2, 1987, the intervenor provided one promissory note to the plaintiff on May 2, 1987, at the face value of KRW 39,60,000 as a prior performance under the above additional agreement, and the plaintiff demanded the plaintiff to provide security. Since the plaintiff refused to receive the said note and deliver the finished product engine, the intervenor withdrawn the provision of the said note.

H. On June 3 of the same year, the intervenor paid the import price of the engine to the issuing bank of the letter of credit with the cooperation of the above trading company's company, without exclusion of the plaintiff, and received the documents required for the customs clearance procedure and received them, and used them directly from the Busan Customs by taking the procedure of customs clearance, and used them in a ship which was constructed by attaching automatic butter system and auxiliary power plant.

2. The judgment of the court below

The court below rejected the plaintiff's assertion that if the plaintiff and the intervenor made such additional arrangements on April 20, 1987, when the plaintiff and the intervenor agreed to perform their own contractual obligations as above, as a dispute after the engine import supply contract of this case, they would have refused to receive the promissory notes provided by the plaintiff and did not follow the procedures for customs clearance of the engine of this case until the delivery date under the agreement, and did not prepare and prepare to deliver the engines of finished products and defective bonds to the plaintiff without going through the procedures for customs clearance of the engine of this case, the plaintiff's failure to perform the obligations under the above contract of this case and the additional agreement of this case was made without approval from the defendant, and thus the damage in violation was caused by the plaintiff's assertion that it would not be compensated by the defendant.

3. Judgment of party members

A. The term "guarantee insurance" is a non-life insurance contract, the purport of which is to take over by the insurer the recovery of the damage to be suffered by the insured (beneficiary under a contract) due to a policyholder's default on 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, which covers the obligor's default on an insurance contract or in substance, which covers the obligor's default on a contract as an insured event. Therefore, a guarantee insurance contract is to compensate for the damage suffered by the insured due to the policyholder's failure to perform the obligation under a principal contract,

B. According to the records, the insured amount is KRW 52,80,00, and the insured period is 119 days (19 days) from October 4, 1986 to January 30, 198. The term "risk-bearing clause" is an advance payment guarantee for the diesel engine delivery, and the term "value-bearing clause" provides that only the advance payment under the above engine delivery should be guaranteed to the Plaintiff according to the terms and conditions of the payment guarantee contract, special terms and conditions and the above insurance policy (Evidence No. 10). According to Article 1 of the above contract, if the Intervenor fails to pay the down payment within 00,000, the insured amount is 60,000,000,000 won and the insured is 10,000,000,000 won and the insured are 10,000,000,000 won and 2,000,000 won, and the insured are 10,000,000.

C. However, according to the court below's reasoning, the above main contract(1986 Sep. 4, 1986) entered into an additional agreement to modify part of the original contract terms and conditions on April 20, 1987, where the plaintiff and the intervenor (insurer and the insured) entered into a contract with each other on the grounds that it is true or legal relations that the plaintiff and the intervenor entered into a contract with each other on the part of the dispute or the responsibility for the non-performance of the contract and agreed to manage the contract in accordance with the contents of the additional agreement. In addition, unless there are special circumstances as seen above, the nature of the guarantee insurance and the contents of the guarantee insurance contract of this case, and the contents and developments of the engine supply contract of this case and the modified contract of this case, the insurance period under the guarantee insurance contract of this case cannot be deemed as the obligation of the plaintiff to pay insurance money to the intervenor under the guarantee insurance contract of this case, and if the plaintiff did not have any obligation to pay the damages to the plaintiff as a matter of course due to the change of the contract of this case.

D. Therefore, the court below should examine the whole contents of the guarantee insurance contract of this case and examine whether the principal contract of this case can be seen as a principal contract in preparation for an engine supply contract of this case and its modification contract of this case. However, the court below should determine whether the defendant is liable to pay the insurance money. However, the court below should examine this part of this case and explain how the plaintiff's losses arising from the plaintiff's failure to perform an additional contract after the expiration of the insurance period are the losses secured by the guarantee insurance of this case and how the plaintiff's failure to perform an additional contract after the expiration of the insurance period, and it is reasonable to reject the plaintiff's claim of this case on the premise that only the defendant can assert that there was no approval for the change of the principal contract within the insurance period of this case, and the rejection of the plaintiff's claim of this case on the premise that only the defendant can assert that the change of the principal

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Young-ju (Presiding Justice)