The nature of loans according to the terms and conditions of a life insurance contract (i.e., advance payment of insurance money or refund for cancellation), whether the legal doctrine of offsetting is applied between the cancellation refund due to the termination of a life insurance contract and the above insurance terms and conditions of a set-off (negative), and whether Article 162(1) of the former Company Reorganization Act applies in cases where a company reorganization procedure commences with respect to an insurance company prior to the termination of the above insurance contract

[Majority Opinion] (A) A policyholder of a life insurance contract may receive a loan according to the method determined by an insurance company within the scope of the cancellation refund of an insurance contract. In the event of a loan, the policyholder may repay the principal and interest of the loan at any time, and if the cause for payment of insurance money or cancellation refund occurs during the event payment is not made, if a loan contract is stipulated to the effect that only the remainder should be paid after deducting the principal and interest of the loan from the principal and interest of the loan. Such a loan contract is performed as a performance of the obligation under the terms and conditions, which is not an independent contract from an insurance contract, but an insurance company’s economic substance of the insurance contract is the same as an advance payment of the insurance money or cancellation refund that an insurance company has to pay in advance. Therefore, even if the term “loan” is used in the above terms and conditions, it does not have the legal character as a loan for consumption, unlike ordinary loans, and it is different from offset under the Civil Act, since only the remainder after deducting the principal and interest of the loan with the nature of advance payment of insurance money or cancellation refund money.

(B) Ultimately, the legal principle of offsetting does not apply between the cancellation refund due to the termination of a life insurance contract and the loan of an insurance contract, and the life insurance company is obligated to return the cancellation refund only to the remainder remaining after deducting advance payment equivalent to the principal and interest of the insurance contract at the time of termination of the life insurance contract. Thus, even if the company reorganization procedure under the former Company Reorganization Act (repealed by Article 2 of the Addenda to the Debtor Rehabilitation and Bankruptcy Act, Act No. 7428, Mar. 31, 2005) commenced with respect to the insurance company before the termination of the life insurance contract and the period for reporting the reorganization expires, there is no room for application of the provision of offsetting

[Concurring Opinion by Justice Park Si-hwan, Justice Kim Ji-hyung, and Justice Ahn Dai-hee] (A) The contracting party to the insurance contract provides that the ownership of money shall be transferred from an insurance company to an insurance company in the form of a “loan” separately in preparing a “loan loan agreement” other than the “insurance contract”, and the policyholder shall return it in money to the insurance company; and if the “interest” is paid by the due date for repayment; and the “interest” is delayed by the due date for repayment, an insurance contract shall be paid in addition to the “interest at delay”. The insurance contract-related Acts and subordinate statutes also classify the loans under the provisions of the insurance contract as one type of credit transaction. Furthermore, according to the corporate accounting standards, the insurance company’s accounting of the loan loan as an “loan loan item” rather than the “loan bond item” among the asset account. Accordingly, considering the fact that the accounting of the insurance loan as a “loan bond becomes more convenient in the insurance industry, it can be interpreted that the above insurance contract is a party to a loan for interest as clearly defined in the Civil Act, clear and clear agreement between the insurance business parties, and the agreement’s.

(B) Recognizing that the Majority Opinion has the nature of an insurance contract as an independent monetary loan contract that is distinct from an insurance contract, it is difficult to agree with the Majority Opinion as “act concerning advance payment of termination refund, etc.” and interpreting the insurance contract as an advance payment, not a loan, because it violates both the provisions of the Civil Act on Loan for Consumption and the Acts and subordinate statutes related to insurance business and the general principles of the Insurance Act established by the Supreme Court as to the interpretation of declaration of intent.

(C) However, we agree with the Majority Opinion that the offset provision under Article 162(1) of the former Company Reorganization Act (repealed by Article 2 of the Addenda to the Debtor Rehabilitation and Bankruptcy Act, Act No. 7428, Mar. 31, 2005) is not applicable to a set-off with respect to a set-off between the policyholder’s cancellation refund claim and the principal and interest of a loan of a life insurance company. However, as the Majority Opinion states, the conclusion does not lead to the constructive concept of “Advance payment,” which is far away from the general perception of the parties to the contract and the insurance company, and it can be sufficiently derived through a reasonable interpretation of the special legal nature of the terms and conditions of an insurance loan with the nature of a monetary loan and the legislative intent of the set-off provision under Article 162(1) of the former Company Reorganization Act.

[Supplementary Opinion to the Majority Opinion] (A) The basic form of a standardized contract for life insurance is that a policyholder may receive a loan according to the method determined by an insurance company within the scope of the refund for cancellation, and where the loan was made accordingly, the policyholder may repay the principal and interest of the loan at any time. If a cause for the payment of insurance money or refund for cancellation occurs during the period of redemption, the policyholder shall only pay the remainder after deducting the principal and interest of the loan from the remainder. The performance of the contract without any other additional agreement is the case where the loan was made as a performance of the obligation under the above standardized contract without any other additional agreement. In principle, in the insurance standardized contract, in principle, the insurance standardized contract, inasmuch as the policyholder who received the loan can redeem the principal and interest of the loan “any other person,” and thus, whether the loan is made or not, depends on the policyholder’s choice. Therefore, it is difficult to regard the insurance standardized contract as

(B) If an insurance policy loan is considered as a loan for consumption, the insurance proceeds and the principal and interest of the insurance policy loan are offset at the time when an insured event occurs. If the beneficiary and the policyholder are different, the two claims are different from the claimant for the insurance policy, and thus, the two claims cannot be offset. On the other hand, if an insurance policy loan is considered as an advance payment of the insurance proceeds, the insurance company should pay only the remainder after deducting the principal and interest of the pre-paid loan to the beneficiary. The payment of the remainder is reasonable in accordance with the terms of the insurance contract, and there is no doubt that the beneficiary raised an objection, and no additional problem arises.

(C) Article 162(1) of the former Company Reorganization Act (repealed by Article 2 of the Addenda to the Act on Debtor's Recovery and Bankruptcy, Act No. 7428 of March 31, 2005) provides that "an expression of intent of offsetting" shall be made before the expiration of the period for reporting obligations" is due to the fact that the amount of reorganization claims and security rights held by the reorganization creditor and reorganization security holder against the reorganization company and the amount of claims held by the reorganization creditor and reorganization security holder against the reorganization creditor and reorganization security holder should not be changed after a certain period of time to determine the premise for the preparation of the reorganization plan. However, it is doubtful whether it is possible to interpret that only the agreement between the parties can be avoided by an agreement.

(D) Ultimately, I think it is reasonable to regard the insurance loan as an advance payment of the cancellation refund money in the insurance contract as well as to interpret the legal relationship at the time of the termination of the insurance contract clearly.

Articles 105 and 598 of the Civil Act, Article 658 of the Commercial Act, Article 162(1) of the former Company Reorganization Act (repealed by Article 2 of the Addenda to the Debtor Rehabilitation and Bankruptcy Act, Act No. 7428, Mar. 31, 2005) (see current Article 144(1) of the Debtor Rehabilitation and Bankruptcy Act), Article 2 subparag. 12 of the Insurance Business Act, Article 2(1)1 of the Enforcement Decree of the Insurance Business Act

Supreme Court Decision 96Da51127 delivered on April 8, 1997 (overruled)

Seoul High Court Decision 2006Na14488 decided May 1, 2008

Korea Deposit Insurance Corporation (Attorney Yoon Young-chul et al., Counsel for plaintiff-appellee)

Seoul High Court Decision 2004Na38343 decided Feb. 4, 2005

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

The grounds of appeal are examined.

1. According to the terms and conditions of a life insurance contract, a policyholder may receive a loan according to the method determined by an insurance company within the scope of the cancellation refund of an insurance contract, and where a loan has been made pursuant thereto, a policyholder may repay the principal and interest of the loan at any time. If a cause for payment of insurance money or cancellation refund occurs during the event payment has not been made, if a loan contract under such terms and conditions (hereinafter “insurance contract”) provides that the remainder shall be paid after deducting the principal and interest of the loan from the payment of the insurance money, which is performed as a performance of the obligation under the terms and conditions, and it shall be deemed as a single contract, which is separate from the insurance contract, and the economic substance of the insurance contract is the same as that of the advance payment of the insurance money or cancellation refund to be paid by the insurance company in advance. Accordingly, even if the above terms and conditions use the term “loan”, it does not have the legal character as a loan for consumption unlike the ordinary loan, and it is different from the nature of offsetting the principal and interest of the insurance money or cancellation refund.

Unlike this, Supreme Court Decision 96Da51127 delivered on April 8, 1997, etc. holding that with respect to an insurance loan under an insurance policy that is made within the scope of cancellation refund, it shall not be deemed as an advance payment of cancellation refund, and under the premise that it is deemed as a separate loan, the claim for cancellation refund and the claim for an insurance policy loan shall be offset at the time of offset by the insurance company’s declaration of offset, etc., to the extent inconsistent with the opinion of this judgment.

2. A. According to the reasoning of the judgment of the court of first instance cited by the court below, the terms and conditions of the life insurance contract of this case entered into between Korea Life Insurance Co., Ltd. (hereinafter “Korea Life Insurance Co., Ltd.”) and Cululty Es. Co., Ltd. (hereinafter “Korea Life Insurance Co., Ltd.”) (hereinafter “Korea Life Insurance Co., Ltd.”) may receive a loan according to the methods determined by an insurance company within the scope of refund upon cancellation of an insurance contract. Accordingly, where a loan has been made, a policyholder may at any time repay the above loan and its interest, and where a cause for payment of insurance money or cancellation refund occurred during a default, the policyholder may offset the principal and interest of the loan and pay the remainder only when the cause for payment of insurance money or cancellation refund occurred, and the above loan shall be deducted from the amount to be paid by an insurance company if there exists a ground for payment stipulated in the insurance terms and conditions of the loan loan agreement of this case, and at the same time, the agreement can only be claimed as a refund without delay until the expiration date of the loan agreement or termination date.

B. In light of the legal principles on the loan of insurance terms and conditions as seen earlier, when comprehensively taking into account the following circumstances: (a) the total amount of principal and interest of the instant loan reaches the cancellation refund; or (b) the principal and interest of the instant loan have not been paid in arrear for six months or longer from the date of repayment, it is reasonable to interpret that, upon termination of the insurance contract, only the remainder of the cancellation refund should be paid, excluding the amount equivalent to the principal and interest of the loan already paid in advance as cancellation refund; and (b) otherwise, the said loan shall not be deemed as being paid in advance as insurance money or cancellation refund pursuant to the instant life insurance contract, notwithstanding the agreement on the redemption date and overdue interest as stipulated in the instant terms and conditions loan loan agreement; and (c) the nature of the instant loan cannot be deemed as a loan granted under a loan agreement separate from the life insurance contract.

Therefore, the legal principle of offsetting does not apply to the cancellation refund following the termination of the life insurance contract of this case and the loans of this case, and the Korea Life Insurance is obligated to return the cancellation refund only to the remainder remaining after deducting advance payment equivalent to the principal and interest of the insurance loan at the time of termination of the life insurance contract. Thus, even if the company reorganization procedure under the former Company Reorganization Act (amended by Act No. 7428 of March 31, 2005, Act No. 7428 of March 31, 2005, hereinafter “former Company Reorganization Act”) has commenced with respect to the Korea Life Insurance before the termination of the life insurance contract of this case and the period for reporting the reorganization has expired, there is no room to apply

C. Although it is inappropriate for the court below to regard the insurance policy loan as a complex contract which has all the elements of loan for consumption and the elements of advance payment of liability reserve to be paid to the future insured, it is recognized that at the time when the insurance contract of this case is terminated and the duty to return the termination refund of Korea Life Insurance, the termination refund equivalent to the principal and interest of the insurance policy loan is deemed to have already been paid, and only the remainder after deducting it shall be paid. As to such mutual aid, it is justifiable to conclude that the offset restriction provision of Article 162(1) of the former Company Reorganization Act is not applicable. Therefore, the court below did not err by misapprehending the legal nature of the insurance policy loan or the legal principles as to the interpretation of the disposal document,

3. 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, except there is a separate opinion by Justice Park Si-hwan, Justice Kim Ji-hyung, and Justice Ahn Dai-hee, and a supplementary opinion by Justice Lee Hong-hoon is

4. The separate opinion by Justice Park Si-hwan, Justice Kim Ji-hyung, and Justice Ahn Dai-hee is as follows.

A. The Majority Opinion does not have the legal character as a loan for consumption, unlike a contract which is separate from an insurance contract, which is a single contract that forms a whole of an insurance contract, and is not a separate contract from an insurance contract, and does not have the legal nature as a loan for consumption, and the amount borrowed according to the terms and conditions is not a “loan” but an insurance company’s “Advance payment” of insurance money or cancellation refund that is to be paid in advance. However, for the following reasons, it is not acceptable as it violates all the established precedents of the Supreme Court and the general principles of the Insurance Act regarding the provision

B. Article 598 of the Civil Act provides that "a loan for consumption bearing interest shall take effect when one of the parties agrees to transfer the ownership of money or other substitute to the other party and the other party agrees to return such ownership in the same kind, quality and quantity." Article 600 of the Civil Act provides that "a loan for consumption bearing interest shall calculate interest from the time when the borrower takes over the object and the borrower shall calculate interest from the time when the lender takes over the object and the borrower delays the receipt of the loan for any reason attributable to it." Article 603(1) of the Civil Act provides that "the borrower shall return the same kind, quality and quantity as the object borrowed at the time of the agreement." Article 2(1)1 of the Enforcement Decree of the Insurance Business Act provides that "a loan for consumption with interest shall be returned to the other party," and Article 98 subparag. 5 of the Insurance Business Act provides that "a loan for use with interest shall be returned to the other party at the time when the lender takes over the object, and Article 600 of the Commercial Act provides that the loan shall be excluded from its terms and conditions.

As stated in the majority opinion, the terms and conditions of the life insurance contract of this case provide that a policyholder may obtain a "loan" within the scope of the cancellation refund of an insurance contract, and accordingly, in the event of "loan", the policyholder may repay the "loan" and "interest" at any time. In the event that a cause for payment of insurance money or refund for cancellation occurs during the period of default, the said "loan principal and interest" shall be offset and only the remainder shall be paid. The "certificate of loan loan loan loan" of this case made pursuant to the above terms and conditions provides that an insurance company shall deduct the above "loan principal and interest" from the amount payable by the insurance company if a cause for payment under the terms and conditions of the insurance occurs. Furthermore, the "certificate of loan loan loan loan loan loan" includes matters concerning the "payment date" of the "loan" and "interest on delay interest" in addition to the terms and conditions of this case.

In light of the above provisions of the Civil Act and the established precedents of the Supreme Court regarding the insurance terms and conditions of the insurance contract of this case, aside from the provisions of the insurance contract, the parties to the contract of this case separately prepare the "certificate of loan loan", and transfer the ownership of money from one life insurance to one insurance company in the form of "loan", and shall return it in money before the due date for repayment, and if the "interest" is delayed by the due date for repayment, it shall be paid in advance. The insurance-related Acts and subordinate statutes also classify the loan as a type of loan transaction under the provisions of the insurance contract of this case as one type. Furthermore, the insurance company's accounting of the terms and conditions of the insurance company shall be stated in the "items of loan claim" not in the asset account, and accordingly, it shall be interpreted that the insurance contract of this case as an "loan loan" can be viewed as an act of trust agreement of this case with the nature of the terms and conditions of the insurance contract of this case, and thus, it shall not be interpreted as an act of trust agreement independent of the terms and conditions of this case.

C. The majority opinion does not have an agreement that if the loan of this case is repaid by the due date, the principal and interest of the loan can be immediately claimed to the policyholder, and it does not have an agreement that "if the sum of the principal and interest of the loan reaches the cancellation refund stipulated in the insurance policy," or "if the principal and interest of the loan have not been paid in arrears for not less than six months from the date of repayment of the loan," the insurance company may terminate the insurance contract at will and appropriate it for the principal and interest of the loan, and if the above cause occurs, the insurance company may take measures to deduct the amount equivalent to the principal and interest of the loan from the cancellation refund upon termination of the insurance contract, and it is interpreted that the insurance contract of this case has agreed not to claim the payment of the principal and interest of the loan of this case in a separate way, notwithstanding the agreement on the redemption date and overdue interest specified in the insurance policy of this case, the insurance contract of this case should be deemed to have been paid as an advance payment of the insurance money or cancellation refund stipulated in the insurance policy of this case.

Under the insurance contract of this case, the provision that a life insurance company may terminate the insurance contract of this case and deduct the principal and interest of loan from the cancellation refund to be returned to Korea Es.S. because such a method is the most reliable method to recover the principal and interest of loan. Thus, it shall be interpreted that the method of recovery of claims can be set up in advance for the purpose of preventing disputes that can be punished on the amount of cancellation refund in relation to the latter Es. and third parties, and it shall be interpreted that it shall be collected by deducting the principal and interest of loan from the cancellation refund without collecting the claim from the general property of the policyholder. On the ground that such provision exists, it is logical to view that there is no obligation of Korea Es.S. to repay the principal and interest of loan to Korea life insurance company after the date of redemption stipulated in the insurance contract of this case, or that there is no right to claim repayment of the principal and interest of loan to Korea Es.S. after the date of termination of the insurance contract of this case, the pledgee cannot be viewed separately from the insurance contract of this case.

The problems of the theory of advance payment taken by the majority opinion are as follows. First, there exists an agreement on interest on the loan of this case, and there is an agreement on the repayment date and overdue interest. If a loan of this case under an insurance contract exists an advance payment of insurance money or cancellation refund, it is difficult for the policyholder to explain whether he should pay interest and overdue interest to the insurer on the ground that he has received the money to be forfeited from the insurer as his right after being paid. In particular, in the case of the insurance contract of this case, after the redemption date, the above insurance contract of this case should be paid in addition to overdue interest after the repayment date has expired. If the above insurance contract of this case is an advance payment rather than a loan of this case, and the repayment date has no particular meaning, it is difficult to find further reasons for the payment of overdue interest.Korea life insurance has secured a clear means to recover the principal and interest of the cancellation refund during its number, and the repayment period of the principal and interest increases, the interest income increase due to the increase in the number of overdue interest revenue. In addition, this is difficult to understand the insurance contract of this case.

Second, the right to claim the payment of insurance money or refund money for cancellation is not yet established as a specific right unless an insurance accident occurs or the insurance contract is terminated. Therefore, it is not easy to say that the advance payment of insurance money or refund money for cancellation is impossible. However, the majority opinion interpret that advance payment of insurance money or refund money for cancellation is difficult to understand that it is possible to understand that advance payment of insurance money or refund money for cancellation has not yet occurred on the ground of non-person. In the case of the life insurance contract like this case, there are many cases where the policyholder and the beneficiary are different, and the right to claim the payment of insurance money belongs to the beneficiary if the insurance accident occurs and the policyholder does not have the right to receive the insurance money if it is considered that the policyholder would receive the insurance money from the beneficiary at the time of the occurrence of the insurance accident. Furthermore, if we take advance payment theory as stated in the majority opinion, it is unreasonable to view that the insurance contract still remains effective without any reasonable explanation as to what kind of logic the insurance contract remains in advance despite the consideration of the insurance contract for cancellation of this case.

Ultimately, the majority opinion denies that the insurance term loan contract of this case has the nature as an independent monetary loan contract that is distinct from the insurance contract, and considers it as the "act concerning advance payment of termination refund, etc." and interpreting the insurance term loan of this case as an advance payment rather than a loan is difficult to agree because it violates all the established precedents of the Supreme Court and general principles of the insurance law regarding the interpretation of the provisions of the Civil Act and the insurance law related to loans for consumption and the interpretation of intent.

D. However, in the background of the Majority Opinion’s interpretation that it is not a loan, but a loan of this case’s insurance terms and conditions, it seems that one life insurance is required to deduct the principal and interest of the loan from the cancellation refund to be returned to Korea Es.S. without conflict with the set-off time under Article 162(1) of the former Company Reorganization Act and to pay the remainder only after deducting the principal and interest of the loan from the cancellation refund to be returned to Korea. If viewed otherwise, the Majority Opinion appears to have caused unfair consequences contrary to equity. Accordingly, the principle of set-off is not applicable between the cancellation refund upon the termination of the insurance contract of this case and the insurance terms and conditions of this case’s insurance, and the Korea Life Insurance is obligated to return only the remainder after deducting the advance payment equivalent to the principal and interest of the loan at the time of the termination of the insurance contract as the cancellation refund. Therefore, there is no room for application of the set-off provision

We agree with the Majority Opinion that the offset provision under Article 162(1) of the former Company Reorganization Act does not apply to a set-off between the cancellation refund claim of Korea-Japan and the principal and interest of the loan of Korea-Japan life insurance. However, we agree with the Majority Opinion, as stated in the Majority Opinion, we do not agree with the conclusion that the conclusion can be sufficiently derived from a reasonable interpretation of the special legal nature of the loan of the insurance terms and conditions of this case, which is characterized as a monetary loan, and the legislative intent of the set-off provision under Article 162(1) of the former Company Reorganization Act.

E. First, in order to implement the loan of this case, the insurance contract must be effective between the policyholder and the insurer. If there is no refund for cancellation, the existence of the insurance contract cannot be presented. The insurance contract loan is made only within the scope of refund for cancellation calculated for each policyholder. The insurance contract of this case provides that the delay in payment of interest on the loan of this case may terminate the insurance contract of this case when the insurance contract is terminated due to the termination of the insurance contract. At the end of the insurance contract, the insurer provides that the unpaid principal and interest on the loan of this case shall be deducted from the insurance money or cancellation refund for the policyholder pursuant to the insurance contract of this case. In light of the fact that the insurance contract of this case and the insurance contract of this case are separate contracts, but the insurance contract of this case has a strong relation between the establishment, continuation, repayment, extinguishment, etc. of the loan of this case and the insurance contract of this case 20 U.S. Supreme Court Decision 99Da17209 Decided on the basis of the existence of the loan of this case and the effect of set-off between both parties can be considered as a set-off.

Next, the purport of Article 162 (1) of the former Company Reorganization Act recognizes a set-off in the company reorganization procedure is that it is unreasonable in principle that a reorganization creditor bears his/her obligation to the company even though he/she is not able to obtain repayment without undergoing the reorganization procedure. The provision provides that a set-off declaration in the company reorganization procedure shall be made before the expiration of the period for reporting the entire amount of obligation, and that the amount of reorganization claims, security rights held by a reorganization creditor or a reorganization security holder against the reorganization creditor or a reorganization security holder and the amount of the claim held by the reorganization creditor or reorganization security holder against the reorganization creditor or a reorganization security holder need to be determined by the specified time limit for the preparation of the reorganization plan. On the other hand, Articles 177 and 178 of the former Company Reorganization Act provide that the reorganization company's manager shall, without delay after the commencement of the reorganization procedure, make an investigation into the list and balance sheet at the time of evaluation of all assets belonging to the company, and the court shall prepare and submit the list and balance sheet at the time of the commencement of the reorganization procedure to the reorganization creditor or its administrator within the prescribed time limit.

If the effect of offsetting takes place without any separate declaration of set-off when the claim for repayment of the principal and interest of the Korea Life Insurance Co., Ltd. and the claim for repayment of the Korea Life Insurance Co., Ltd. reach the set-off status, the provisions of Article 162(1) of the former Company Reorganization Act, which recognizes the legitimate effect of offsetting only after the declaration of intent to set-off to the administrator of the Korea Life Insurance Co., Ltd., upon the expiration of the period for reporting the claims, cannot be applied to this case. Furthermore, the administrator of the Korea Life Insurance Co., Ltd., in the course of assessing the value of the assets of the reorganization company and security holders pursuant to the provisions of Articles 177 through 181 of the former Company Reorganization Act, as well as personal information of the reorganization company and security holders, and the contents and cause of the reorganization claim and security, can easily be understood that the amount of cancellation refunds to be paid from the Korea Life Insurance Co., Ltd., Ltd. upon the termination of the insurance contract, even if it did not go against the legislative intent of the Korea Life Insurance Co.

F. Therefore, the lower court’s conclusion that the offset in this case is not subject to the provision of offset under Article 162(1) of the former Company Reorganization Act is justifiable and acceptable, and thus, it should be dismissed.

G. On the grounds above, I agree with the conclusion of the majority opinion, but I agree with the separate opinion on the grounds of dismissal of appeal.

5. Justices Lee Hong-hoon will supplement the majority opinion with respect to the issues raised by the separate opinion.

A. The principle of the loan of insurance terms and conditions provides that a policyholder of a life insurance contract may obtain a loan according to the method determined by an insurance company within the scope of the cancellation refund, and where a loan has been made pursuant thereto, the policyholder may at any time repay the principal and interest of the loan, and if a cause for payment of insurance money or cancellation refund arises during the period of redemption, the policyholder shall pay only the remainder after deducting the principal and interest of the loan. It is the case where the insurance loan was made as the performance of the obligation under the above terms and conditions without any additional agreement.

The Concurring Opinion argues that, without explicitly mentioning the legal nature of the loan of insurance terms and conditions as above, the legal nature of the loan of this case where special agreements such as redemption date and overdue interest are added should be viewed as a loan for consumption instead of advance payment.

However, in examining the legal nature of insurance policy loan, it will be necessary to first examine the legal nature of insurance policy loan in the form of principle, and to consider whether the special agreement such as this case should be the same as that of the insurance policy loan.

B. In principle, in a loan of insurance terms and conditions, since an insurance policyholder who received a loan can repay the principal and interest of the loan “(s)”, whether the loan is repaid or not or not, depends solely on the choice of a policyholder. As the separate opinion pointed out, a loan for consumption becomes effective when the borrower agreed to “return” the loan(s) and the borrower must return the same kind, quality, and quantity as the loan(s) at the time of the agreement (Article 603(1) of the Civil Act). Therefore, the insurance loan, which can be repaid at the option of the policyholder, can not be considered as a loan for consumption under the Civil Act.

C. The Concurring Opinion argues that it is difficult to explain why a policyholder should pay interest if a loan under an insurance clause loan is an advance payment of insurance money or cancellation refund money.

However, the term "interest" is not "interest" as referred to in a loan for consumption, but it is not "interest" as referred to in a loan for consumption, and it should be viewed as a consideration for compensation for profit that an insurance company could have obtained by operating the liability reserve or for advance payment of insurance proceeds or refund money for cancellation.

In other words, unlike pure guaranteed insurance, the life insurance includes the portion for accumulation in addition to the portion corresponding to risks in the insurance premium, and the insurance company sets aside a considerable portion of the insurance premium collected from a large number of policyholders and operates it as a liability reserve and raises profits from it. The above liability reserve is legally attributed to the insurance company, but it is merely temporary inasmuch as it is expected to be paid as the insurance money or the refund money for cancellation between maturity and maturity, the ownership of the insurance company is merely temporary in fact, and all policyholders are potential right holders. Therefore, Article 120 of the Insurance Business Act requires separate accumulation of the liability reserve in order to ensure that the insurance company can make sure the payment of the insurance money or the refund money for cancellation, and Article 736 of the Commercial Act provides that the insurance company shall pay the above accumulated amount to the insurance company when the life insurance contract is terminated and the exemption from the liability to pay the insurance amount is exempt. Meanwhile, Article 123(1) of the Insurance Business Act provides that the insurance company is obliged to comply with the financial soundness standards, such as asset soundness.

Under the above circumstances, if an insurance company returns part of the liability reserve included in the assets of an insurance company to a policyholder by the payment of insurance premiums by the policyholder, the insurance company would lose operating profit of the liability reserve corresponding to the amount of the insurance company, while the policyholder who received the insurance policy loan would gain profit equivalent to the above operating profit. The “interest” of the insurance policy loan functions to compensate for losses of the insurance company caused by the shortage of the liability reserve by allowing the said policyholder’s profit to be paid to the insurance company. Therefore, it is difficult to view it as “interest” as referred to in the loan for consumption.

D. The Concurring Opinion argues that, in a case where the interest on the principal and interest of an insurance policy loan continues to be added, and the amount of the principal and interest of the loan exceeds the amount of refund for cancellation, an insurance company should naturally be deemed to have a claim for the excess amount to the policyholder under an insurance policy loan contract, but it cannot be deemed that the provision on the grounds for cancellation of an insurance contract is not

In light of the fact that a loan of insurance terms and conditions is made within the scope of cancellation refund, if the interest exceeds the amount of cancellation refund due to the continued addition of interest, it is general to ensure that no interest does accrue from the termination of an insurance contract at that time. In the context of the loan of this case, the following terms and conditions provide that “When the total amount of the principal and interest of the loan reaches the cancellation refund stipulated in the insurance terms and conditions,” “insurance company shall terminate the insurance contract at will and appropriate it to the principal and interest of the loan,” and without providing that “a loan may be appropriated,” it can be deemed that an insurance company owes a duty to terminate the contract and terminate the relationship of the insurance terms and conditions if the total amount of the principal and interest of the loan reaches the cancellation refund.”

Therefore, the claim that the insurance company continued to maintain the relationship of insurance policy loan even though the amount of principal and interest of the insurance policy loan exceeds the cancellation refund, and the claim for payment of interest after the point of time does not arise from the general insurance policy loan.

In addition, even if the principal and interest of insurance contract loans exceed the amount of refund for cancellation, it is unreasonable to maintain the relationship of the insurance contract loan in accordance with the explicit or implied agreement between the insurance company and the policyholder, and as a result, delay of the termination of the insurance contract may not be no less favorable than that of the policyholder due to the increase of interest arising from the maintenance of the insurance contract compared with the continued interest burden. In such a case, the policyholder continues to enjoy the benefits that can be paid by maintaining the insurance contract, while the insurance company continues to lose the profits that can be obtained by operating the liability reserve equivalent to the refund for cancellation until the termination of the insurance contract, and even if the policyholder should pay interest to the insurance company before the termination of the insurance contract, it is merely compensating for the loss of the insurance company’s profits, and it cannot be viewed as the same nature as the interest in the loan for consumption or the delay damages after the payment period.

E. The Concurring Opinion argues that, in the case of a life insurance contract, there are many cases where the policyholder and the beneficiary are different, the right to claim the payment of the insurance proceeds belongs to the beneficiary and the policyholder does not have any right to claim the payment of the insurance proceeds in the event of the occurrence of the insurance accident.

However, the above contradictions rather arise when considering the view that a loan of insurance terms and conditions is regarded as a loan for consumption, or it does not occur if viewed as an advance payment as the majority opinion.

In other words, if an insurance contract loan is considered as a loan for consumption, the insurance proceeds and the principal and interest of the insurance contract loan are offset at the time of the occurrence of an insurance accident. If the beneficiary and the policyholder are different, the claimant for the insurance proceeds and the person liable for the repayment of the principal and interest of the insurance contract loan are different from each other, so the above two claims may not be offset. On the other hand, if an insurance contract loan is considered as an advance payment of the insurance proceeds, the insurance company should pay only the remainder except the principal and interest of the prepaid loan to the beneficiary. The payment of the remainder is reasonable in accordance with the terms and conditions of the insurance contract, and there is no objection against the beneficiary, and there is no additional problem.

F. As the Concurring Opinion, if a loan of insurance terms and conditions is considered as a loan under a separate loan agreement, a third party, a creditor of an insurance company, can seize an insurance company’s claim for a loan to a policyholder and collect or obtain the whole amount of the loan. If so, an insurance company would be unable to offset the principal and interest of the loan of insurance terms and conditions when paying the future insurance money or the refund for cancellation.

The Concurring Opinion argues that a high level of relationship between the insurance contract and its establishment, existence, transfer, repayment, and extinction is not permitted, so it is doubtful whether the provision of the Act on the Prohibition of Seizure can create a claim prohibited from seizure by only the agreement between the parties without any provision on the prohibition of seizure. Furthermore, the Concurring Opinion considers the insurance contract of this case and the insurance contract of this case as a separate contract. Since the contents of the insurance contract of this case, which are different contracts, are prohibited from seizure of the insurance contract of this case, which are issued by the insurance contract of this case, as the contents of the insurance contract of this case, it is difficult to accept as an interpretation contrary to the legal principles of compulsory execution, such as the protection of trust of execution creditors.

However, the Concurring Opinion does not prohibit seizure of claims for repayment of insurance loans, but it is possible to interpret that seizure of claims for payment of future insurance proceeds or cancellation refunds is subject to seizure without attaching the condition that they can be offset against claims for payment of future insurance proceeds or cancellation refunds. However, even so, even if it is so, the creditor who is obligated to pay insurance proceeds or cancellation refunds becomes an insurance company and becomes a whole creditor of the insurance company, and the legal relationship becomes complicated as it becomes a different person between the insurer and the obligor of insurance proceeds or cancellation refunds, and the trust of all creditors would be harmed if it is offset against future.

On the other hand, if the insurance policy loan is an advance payment of insurance money or cancellation refund, there is no room for the third party to seize it, and such problem does not occur.

G. As above, the legal nature of the insurance policy loan is the most reasonable interpretation to regard it as advance payment of insurance money or cancellation refund money.

However, on August 7, 200, after the conclusion of the insurance contract on August 4, 200, the insurance contract of this case was entered into, and entered in a special agreement on the repayment date and overdue interest of the insurance contract loan of this case. In this case, whether the legal nature of the insurance contract of this case was changed to a loan for consumption or not, or whether it is deemed that the nature as an advance payment is maintained as it is, is an issue. As to this point, the majority opinion comprehensively takes into account all relevant circumstances such as the purport of the special agreement of this case, the circumstance leading to the agreement, the parties' intent, etc., in light of the legal principles on the loan of the insurance contract of this case as seen earlier, it is deemed that the insurance contract of this case still maintains the legal nature of advance payment, and it cannot be deemed that the legal nature of advance payment was lost and changed to a loan for consumption.

H. The Concurring Opinion argues that if it is deemed that the instant insurance contract loans have the legal nature as an advance payment of insurance money or cancellation refund, it would be impossible to obtain the reasons for additional payment of delayed damages under the pretext of overdue interests after the agreed repayment date.

However, in the instant case, the term “interest in delay”, which was agreed to be paid by Korea E.S., shall be deemed to be “compensation for loss of profits that could have been obtained by operating the liability reserve equivalent to the loan amount,” not as “interest in delay,” in the meaning of the loan for consumption,” as “compensation for loss of profits that could have been obtained by operating the liability reserve equivalent to the loan amount,” and therefore, it shall be deemed to have been agreed in advance to increase the compensation amount after the repayment date. Therefore, the said agreement does not deem that the legal nature of the insurance loan in this case was changed to the loan

I. The Concurring Opinion argues that the provision of offsetting restriction under Article 162(1) of the former Company Reorganization Act does not apply to the instant insurance contract and the insurance terms and conditions loan agreement of this case, in a case where both parties are forced to offset the principal and interest of the loan to Korea ENS by the cancellation of the insurance contract, etc., without any separate declaration of intent of offset, shall be interpreted as having intent to deduct or deduct the principal and interest of the loan from the cancellation refund as a matter of course from the cancellation refund.

However, Article 162(1) of the former Company Reorganization Act provides that the expression of intent of offsetting shall be made before the expiration of the period for reporting the reorganization claims and security rights held by the reorganization creditors and reorganization security holders against the reorganization company, and that the reorganization company should not change the amount of claims held by the reorganization creditors and reorganization security holders against the reorganization creditors and reorganization security holders after a certain period of time to determine the premise for the preparation of the reorganization plan. It is questionable whether it is possible to interpret that the application of the provisions of offset restriction with public nature can only be avoided by an agreement between the parties.

Furthermore, Article 162(1) of the former Company Reorganization Act provides that “if a reorganization creditor or security holder bears an obligation to the reorganization company at the time of commencement of reorganization proceedings, both of the claims and obligations will be offset before the expiration of the period for reporting obligations.” Thus, at the time of commencement of reorganization proceedings, it is demanded that the reorganization creditor’s obligation would occur and the period for reporting obligations be offset before the expiration of the period for reporting obligations. However, since the insurance contract of this case is terminated only after the expiration of all the period for reporting the reorganization proceedings and the period for reporting obligations, the obligation of cancellation refund money of Han Life Insurance, which is a reorganization creditor, was not created at the time of commencement of reorganization proceedings, and two obligations are not offset even before the expiration of the period for reporting obligations, taking into account several claims that were not created at the time of commencement of reorganization proceedings as a passive claim, and treating that the reorganization claim of the reorganization creditor was set off later at the time of the investigation of reorganization claims and the period for reporting obligations would seriously undermine the procedural stability and public interests

(j) We examine the arguments presented in the Concurring Opinion as above, deeming the instant insurance terms and conditions as an advance payment of the cancellation refund, not only is it reasonable in the legal principle, but also it is possible to clearly deal with the legal relationship at the time of the termination of the insurance contract. In applying the general legal principles on the loan of insurance terms and conditions, dispute settlement can be resolved by deeming that the principal and interest of the instant insurance terms and conditions have ceased to exist among the cancellation refund money of this case, by applying the general legal principles on the loan of insurance terms and conditions. Recognizing the exception to the general legal principles on the loan of insurance terms and conditions, deeming the insurance loans as a loan of this case as a loan for consumption, and admitting exceptions different from the legal principles on the general set-off or declaration of intention of set-off, and further trying to make an exceptional interpretation as to the reorganization claim set-off principle under the former Company Reorganization Act, the conclusion that the Majority Opinion is ultimately the same as the Majority Opinion.

Chief Justice Lee Yong-chul (Presiding Justice)