[1] Whether the starting point of the statute of limitations for insurance claims under the fidelity Guarantee Insurance Contract for the representative of a corporation which committed a tort is delayed when another officer, etc. becomes aware of the representative's tort (negative)

[2] Requirements to exempt the fidelity guarantor from liability due to the employer's breach of duty to notify

[1] The statute of limitations shall commence from the time when the right to claim insurance benefits arises and the right to claim insurance benefits can be exercised. Thus, in a contract of fidelity guarantee insurance, the statute of limitations of the right to claim insurance benefits shall commence from the time when the insured event, which is the time when the right to claim insurance benefits can be exercised, occurs, and in case of a tort committed against the juristic person, even though it is difficult to expect the juristic person and its representative to exercise the right to claim insurance benefits under the fidelity Guarantee Insurance Contract in reality because the interests of the juristic person and its representative conflict with each other, it cannot be said that the juristic person has no possibility to exercise the right to claim insurance benefits when the tort occurred, in light of the reason for the existence of the audit (auditor) system that shall monitor the illegal act of the juristic person. Therefore, it shall not be deemed that the statute of limitations runs only when other executive officers, employees, or employees, etc.

[2] Even if an employer has a duty to notify under Article 4 of the Act on the Guarantee of Fidelity, the employer is not exempt from the responsibility of the fidelity guarantor merely because the employer failed to give notice. However, if it is deemed that the relationship between the fidelity guarantor and the surety was deprived of the opportunity of termination of the contract by failing to give notice despite special circumstances that the relationship between the fidelity guarantor and the surety would have terminated the contract, the responsibility of the fidelity guarantor

[1] Article 662 of the Commercial Code, Article 166 of the Civil Code / [2] Articles 4 and 5 of the Guarantee of Personal Identity Act

[1] Supreme Court Decision 84Nu572 delivered on December 26, 1984 (Gong1985, 272), Supreme Court Decision 2002Da11441 delivered on June 14, 2002 (Gong2002Ha, 1658) / [2] Supreme Court Decision 84Da1221 delivered on December 24, 1985 (Gong1986, 309), Supreme Court Decision 86Da1100 Delivered on January 20, 1987 (Gong1987, 362), Supreme Court Decision 93Da5741 delivered on April 26, 194 (Gong194, 1451) (Gong194, 197Da397497 delivered on February 14, 197).

Korea Deposit Insurance Corporation (Attorney Kim Jin-jin, Counsel for the plaintiff-appellant)

Seoul Guarantee Insurance Co., Ltd. and two others (Law Firm Multilater, Attorneys Jeong Sejong-won et al., Counsel for the plaintiff-appellant)

Daegu High Court Decision 2001Na3314 delivered on January 16, 2002

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

1. Basic facts acknowledged by the court below

The court below acknowledged the non-party 1's co-defendant 1 as the chairperson of the non-party 1's credit union before bankruptcy (hereinafter "non-party 1') from May 30, 198 to December 14, 1998, the non-party 2 as the non-party 1's managing director from around 190 to December 14, 1998, the defendant Seoul Guarantee Fund Co-defendant 1 (hereinafter "Defendant 1") was the insured on August 26, 1994 between the non-party 1's co-defendant 10, the insurance amount of 10,000 won, the insurance amount of 0,000 won from August 27, 1994 to the non-party 2's 10,000 won, and the non-party 1's co-defendant 2 as the non-party 1's new surety within the non-party 4's 9's collective guarantee contract between the non-party 1's new surety 197.

2. Determination on the appeal against Defendant 1

The statute of limitations begins from the time when a right arises and the right can be exercised (see, e.g., Supreme Court Decision 84Nu572, Dec. 26, 1984). Thus, in a fidelity guarantee insurance contract, the statute of limitations of the right to claim insurance will begin from the time when an insured incident, which is the time when the right can be exercised. If the representative of the secured juristic person commits a tort against the juristic person, it is difficult to expect the juristic person to exercise the right to claim insurance under the fidelity guarantee insurance contract in reality because the interests of the juristic person and its representative conflict with the profits of the juristic person. However, in light of the reason for the existence of the audit system that should monitor the illegal act of the representative, it cannot be said that the juristic person has no possibility to exercise the right to claim insurance money at the time when the illegal act occurred. Thus, it is not deemed that the statute of limitations runs only when another officer, employee, or employee who has the authority to properly preserve the interest of the juristic person has become aware of the representative'

The court below held that the plaintiff's claim is extinguished after the lapse of two years from August 26, 1997 following the date on which the above accident occurred, and held that the plaintiff's claim for insurance money expires, barring any special circumstance, and that the defendant company as co-defendant 1's co-defendant 1's defendant 1's defendant 1's defendant 1's claim is obligated to pay 10,000 won out of the unredeemed amount due to the above illegal loan amount of 1,745,00,000 won which occurred within the insurance period to the plaintiff as the co-defendant 1's co-defendant 1's claim. However, Article 4 of the General Clause of the above Guarantee Insurance Contract provides that "the extinctive prescription period of the above claim for insurance money is terminated unless it is exercised for two years." Thus, the court below's determination that the plaintiff's claim for insurance money cannot be justified in the misapprehension of legal principles as to the plaintiff's claim for insurance money can not be accepted.

3. Determination on the grounds of appeal against Defendant 2 and 3

Even if an employer has a duty to notify under Article 4 of the Act on the Guarantee of Fidelity, the employer is not exempt from the responsibility of the fidelity guarantor immediately because the employer failed to notify the employer, but if it is deemed that the fidelity guarantor and the guarantor have deprived the fidelity guarantor of an opportunity to cancel the contract because they did not notify despite special circumstances that the relationship between the fidelity guarantor and the guarantor would have terminated the contract, the responsibility of the fidelity guarantor is denied (see Supreme Court Decision 93Da5741, Apr. 26, 1994, etc.).

The court below held that the above defendants are liable to pay the plaintiff's claim amount out of the outstanding amount due to the above illegal loan acts committed by co-defendant 2 of the court of first instance, as co-defendant 2 of the court of first instance, unless there are special circumstances. However, according to the evidence of employment, co-defendant 2 of the court of first instance continued to lend 30 million won to non-party 2 of the first instance on May 11, 1993 under the name of Kim Young-ro for the first time under the order of co-defendant 1 of the court of first instance and continued to lend 30 million won to non-party 2 of the first time. The above defendants were co-defendant 2 of the court of first instance at the request of the co-defendant 2 of the court of first instance and they concluded the above contract without any economic interest. Thus, the court below's judgment that the above defendants' co-defendant 1 of the court of first instance, the president of the non-party 1, as co-defendant 2 of the first instance court, could not be justified in light of the first judgment's grounds for appeal.

4. 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 Song Jin-hun (Presiding Justice)