[1] The nature of an insurance contract for fidelity guarantee (i.e., insurance of the ordinary nature of non-life insurance and insurance of the nature of liability insurance are integrated), and whether the time when the occurrence of the insurance claim and the starting point of the statute of limitations should be individually identified (affirmative)

[2] The time when the right to claim insurance and the starting point of the statute of limitations for the contract of guaranteeing the identity of liability insurance (=the time when the insured's loss is determined)

[3] The time when the occurrence of the right to claim insurance and the starting point of the statute of limitations for the insurance contract of the ordinary nature of non-life insurance (=public notice of death)

[1] The loss caused by an insured event under the Guarantee Insurance Contract (including special terms and conditions) can be categorized as damages suffered by the insured by the act of the principal under general terms and conditions, ① the loss directly suffered by the insured due to the act of the principal debtor, ② the loss incurred by the insured by the act of the principal debtor against a third party due to the act of the principal debtor under general terms and conditions, ③ the loss directly suffered by the insured due to the act of the principal debtor under civil liability such as gross negligence of the principal debtor under special terms and conditions, ④ the act of the principal debtor under special terms and conditions, ④ the loss directly incurred by the insured, ④ the act of the principal debtor under special terms and conditions, and ③ the insurance portion covered by the loss falls under ordinary non-life insurance. ② The insurance portion covered by the insurance amount is not directly covered by the principal debtor's act, but also compensation for the loss suffered by the third party due to the act of the principal debtor against the principal debtor, and thus, it shall be classified as a type of insurance contract (Article 721) of the Commercial Act).

[2] In light of the nature of liability insurance, in order for the insured to exercise the right to claim insurance, the insured must pay damages to a third party or determine the liability of the insured to a third party in such a manner as stipulated in the Commercial Act or the insurance clause. Article 662 of the Commercial Act provides that the right to claim insurance shall expire if it is not exercised for two years. Since there is no provision in the Commercial Act regarding the starting point of the extinctive prescription of the right to claim insurance, there is no provision regarding the starting point of the right to claim insurance, Article 166(1) of the Civil Act stipulating that "the extinctive prescription shall run from the time when the right to claim insurance can be exercised." Unless there are special circumstances, such as where the standardized contract provides otherwise with regard to the starting point of the right to claim insurance, the extinctive prescription of the right to claim insurance under liability insurance shall, in principle, proceed from the time when the insured's liability to claim insurance against a third party is finalized by repayment, approval, compromise, or judicial method under Article 723(1

[3] Ordinary non-life insurance can be deemed as an insurance accident in which the surety directly inflicted damage on the insured, but it is objectively unclear whether or not the insurance accident occurred, and thus, barring special circumstances where the claimant could not know of the occurrence of the insurance accident without negligence, the extinctive prescription of the insurance claim shall, in principle, start from the time the insurance accident

[1] Article 721 of the Commercial Act / [2] Articles 662, 719, and 723 (1) and (2) of the Commercial Act, Article 166 (1) of the Civil Act / [3] Article 662 of the Commercial Act, Article 166 (1) of the Civil Act

[2] Supreme Court Decision 87Da19666 delivered on June 14, 198 (Gong1988, 1023), Supreme Court Decision 97Da5422 delivered on February 13, 1998 (Gong1998Sang, 711), Supreme Court Decision 97Da5422 delivered on May 12, 1998 (Gong1998Sang, 1610) / [3] Supreme Court Decision 92Da39822 delivered on July 13, 1993 (Gong1993Ha, 2240), Supreme Court Decision 97Da36521 delivered on November 11, 1997 (Gong197Ha, 372), Supreme Court Decision 200Da529639 delivered on June 16, 198 (Gong97Da196598 delivered on June 16, 199)

Han-sung Securities Co., Ltd. (Law Firm Pacific, Attorneys Lee Jong-soo et al., Counsel for the plaintiff-appellant)

Seoul Guarantee Insurance Co., Ltd. (Law Firm Namsan, Attorneys Jeon Dong-jin et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2001Na62505 delivered on April 26, 2002

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

The grounds of appeal (to the extent of supplement in case of supplemental appellate briefs not timely filed) are examined as follows.

1. As to the assertion of mistake of facts and incomplete hearing

According to the reasoning of the lower judgment, the lower court determined that the Plaintiff’s act of purchasing and selling shares was difficult to acknowledge that Nonparty 1 was an insurance company’s employee, and that the Plaintiff’s act of purchasing and selling the shares was an insurance contract of this case [this case’s registered organization insurance contract applies] under Article 1 of the above general insurance contract provides that the surety would compensate the Plaintiff for losses incurred by the Plaintiff’s direct act of purchasing and selling shares (including losses incurred by the Plaintiff’s legal liability for damages due to the above reasons) during the insurance period, by taking advantage of his or her position. It is difficult for the Plaintiff to acknowledge that the Plaintiff’s act of purchasing and selling the shares was an insurance accident of this case’s 19 times as an insurance company’s non-party 1 and/or 2’s non-party 1’s non-party 1’s non-party 1’s non-party 1’s non-party company’s non-party 1’s non-party 1’s non-party 1’s non-party 1’s non-party 1’s non-party 7 damages.

In comparison with the records of the judgment below, we affirm the above fact-finding and judgment of the court below, and there is no error in the misconception of facts or incomplete hearing due to the violation of the rules of evidence.

2. As to the assertion of misapprehension of legal principles as to the starting point of extinctive prescription

A. As to the second accident

According to the records, the damage caused by an insured event under the Guarantee Insurance Contract of this case (including the Special Clause) can be identified as follows: ① the damage directly suffered by the insured due to the act of the principal under the General Clause; ② the damage suffered by the insured by the latter due to the criminal act of the principal under the General Clause against a third party; ③ the damage directly suffered by the insured due to the act of the principal under the Special Clause, such as gross negligence of the principal under the principal clause; ④ the damage directly incurred by the insured due to the act of the principal clause under the special clause, and ④ the act of the principal clause under the civil liability of the principal clause, such as gross negligence of the principal clause, can be assessed as damages suffered by the insured by the third party; ② the insurance portion covered by the loss falls under ordinary non-life insurance; ② the insurance portion covered by the principal clause is not directly compensated by the principal act of the principal; ② the third party is compensated by the third party due to the act of the principal's act, which is the insured's employee, and thus, the starting point of calculating the insurance claim should be classified as a kind of insurance contract.

(3) The scope of the insurer’s liability insurance is limited to the amount of the insured’s liability for damages to a third party due to an insured event. According to Article 723(1) and (2) of the Commercial Act, if the insured’s liability is finalized due to repayment to, approval of, compromise with or judgment on a third party, the insurer shall pay the insurance money within 10 days from the date of receipt of notice of such determination. In light of the nature of such liability insurance, in order for the insured to exercise the right to claim insurance, the liability of the insured against to the third party shall be determined by the method stipulated in the Commercial Act or the insurance clause (see Supreme Court Decision 87Meu276, Jun. 14, 198). In principle, Article 62 of the Commercial Act provides that the insured’s liability for damages to the third party shall be extinguished unless the insured is exercised for two years, and it shall be determined that the period of extinctive prescription of the insurance claim shall not run from the date of commencement of the insurance claim to the third party.

According to the facts duly admitted by the court below, since the accident of this case No. 2 is an accident involving damage under the above paragraph (2) to which the general terms and conditions apply, its insurance relationship has the nature of liability insurance, not ordinary non-life insurance. Since the judgment of claim for damages filed against the plaintiff was finalized on July 27, 1999 and the plaintiff's liability for damages against the plaintiff was confirmed, and the plaintiff can exercise this part of the insurance claim against the defendant, the extinctive prescription of the insurance claim shall proceed from the time when the above judgment becomes final and conclusive. Thus, the extinctive prescription of the insurance claim of this case shall not run from the time when the above judgment becomes final and conclusive.

Therefore, the judgment of the court below that rejected the Defendant’s defense against the statute of limitations is just, and contrary to the allegations, there is no error of law by misapprehending the legal principles as to the starting point of the statute of limitations

B. As to the first accident

According to the reasoning of the judgment below, the court below held that the statute of limitations of each insurance claim of this case begins from the date of occurrence of the insurance accident, which is the time when the right to claim of this case is possible. Each insurance claim of this case is confirmed by the expiration of the two-year extinctive prescription period from the date of occurrence of each insurance accident under the special terms and conditions as above. Article 1 of the special terms and conditions applicable to this part of the insurance contract provides that damages under the special terms and conditions shall be compensated for if the surety is confirmed by the court's decision, etc. as to the damages under the special terms and conditions. Thus, in order for the insured to exercise the insurance claim, the liability of the surety shall be determined by the court's decision, etc., at least in accordance with the above terms and conditions. Accordingly, the statute of limitations of the plaintiff's insurance claim of this part shall be calculated from the time when the respondent's liability for compensation is finalized. In light of the above facts, the defendant's appeal against the defects in Kim Mine, which is the surety, becomes final and conclusive by withdrawal of the defects.

In comparison with the records of the judgment of the court below, the above judgment of the court below is just in accordance with the legal principles as seen in the above A., and there is no error in the misapprehension of legal principles as to the standard contract applicable to the first accident and the starting point of extinctive

3. Regarding immunity, negligence offsetting, and profit and loss deduction

According to the reasoning of the judgment below, the court below rejected the defendant's assertion on the ground that the plaintiff's negligence on the management and supervision of the first accident caused this part of the damage, and that the plaintiff's above fee revenue from the excessive transaction of the Kim Mine defects should be deducted from the insurance proceeds in this part, and that the insurer's negligence should not be allowed in light of the nature of the insurance for the insured's damage compensation, and that the insurer's negligence should not be allowed in relation to the claim against the defendant's assertion that the insured's claim for insurance money should be offset from the insurance proceeds in accordance with the ratio of the insured's negligence, and that the fee revenue from the plaintiff's loss should naturally be deducted from the insurance proceeds in proximate causal relation with this part of the insurance accident itself as he cannot be deducted from the insurance proceeds. In light of the records of the judgment of the court below, the judgment of the court below is just, and there is no evidence to prove that the second accident of this case was caused by the plaintiff's intentional act or aiding and abetting, as alleged in the judgment below.

4. 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 Lee Jae-in (Presiding Justice)