In cases where a seizure and assignment order issued on part of a claim for return of insurance money based on an insurance contract, whether such effect affects the claim for return of cancellation acquired by the policyholder upon termination of the insurance contract (affirmative), and the time when the cause for payment of cancellation refund occurs

If a seizure and assignment order has been issued on part of the claim for the return of insurance money based on an insurance contract at the request of a creditor, it is reasonable to interpret that the claim for the cancellation refund acquired by a policyholder upon the termination of an insurance contract is also subject to the claim for the return of insurance money premised on the occurrence of an insurance accident stipulated in the insurance contract. In general, the termination right of an insurance contract cannot be regarded as a continuous right, unless there is any special limitation on the termination of the insurance contract. In addition, even if a claim for cancellation refund is a claim under a condition to suspend the payment of cancellation refund, such as the termination of the insurance contract, even if the claim for cancellation refund is delivered to the insurance company that is the third debtor, it can be deemed that the creditor has exercised the termination right on behalf of the third debtor through the execution court. Thus, the ground for the cancellation refund has already occurred at the time of the delivery of the above seizure

Article 543 of the Civil Act

Supreme Court Decision 76Da52 Decided February 24, 1976 (No. 24-1, 121), Supreme Court Decision 88Meu19606 Decided November 10, 1989 (Gong190Sang, 13)

Plaintiff

Samsung Life Insurance Co., Ltd. (Attorney Park Sang-hoon, Counsel for defendant-appellant)

Seoul District Court Decision 2002Gaso64368 delivered on March 13, 2003

August 7, 2003

1. The part of the lower judgment against the Plaintiff, which orders payment under the following, shall be revoked.

The defendant shall pay to the plaintiff 5 million won with 5% interest per annum from November 5, 2002 to May 31, 2003, and 20% interest per annum from the next day to the day of full payment.

2. The plaintiff's remaining appeal is dismissed.

3. The total costs of the lawsuit shall be borne by the defendant.

4. The part on which money is paid under paragraph (1) may be provisionally executed.

The judgment of the first instance is revoked. The defendant shall pay to the plaintiff 5 million won with 25% interest per annum from the day after the delivery of a copy of the complaint of this case to the day of complete payment.

1. Basic facts

The following facts are not disputed between the parties, or they can be acknowledged in full view of the whole purport of the pleadings in the entries in Gap evidence Nos. 1 and Eul evidence Nos. 1 through 3, and there is no counter-proof.

A. On May 3, 1994, Nonparty 1 entered into a new life annuity insurance contract (securities number 25213892; hereinafter referred to as “instant insurance contract”) with the Defendant Company on the main contents of the contract amount of KRW 20,000,000, insurance premium payment period of KRW 12 years, monthly payment period of KRW 12 years, KRW 85,500, and year 2026, etc., and continued to pay the agreed insurance premium from the contract date to the date of closing of argument in the instant case.

B. On December 1, 2001, the court below issued a claim attachment and assignment order (hereinafter “instant attachment and assignment order”) with respect to the claim for refund of KRW 5,00,000,000 out of the insurance amount of KRW 6,700,000,000, which Nonparty 1 had against the Defendant Company, based on the original copy of the judgment with executory power over the case such as divorce 2002ddan 17934 (Counterclaim), divorce 17934 (Counterclaim), and division of property, etc., which was executed by the Plaintiff against Nonparty 1, the Defendant Company as the third obligor. The attachment and assignment order of this case were served on the Defendant Company on December 4, 201.

C. The insurance terms and conditions applicable to the insurance contract in this case may terminate the contract at any time before the cause for payment of insurance proceeds due to disability of class 1 occurs during the period of the first insurance (the 50-year-old-old-year-old-year-old-year-old-year-old-year-old-year-old-year-old-year-old-year-old-year-old-year-old-year-old-year-old-year-old-year-old-year-old-year-old-year-old-year-old-year-old-year-old-year-old-year-old-year-old-year-old-year-old-year-old-year-old-year-old-year-old-year-old-year-old-year-old-year-old-year-old-year-old-year-old-year-old

2. The parties' assertion

The plaintiff asserts that the defendant company has the obligation to pay the total amount of KRW 5,00,000 and delay damages to the plaintiff as the cause of the claim in this case. Accordingly, since the defendant company has the inherent authority of the policyholder to terminate the insurance contract, the obligee of the policyholder cannot exercise the right to terminate the contract in this case. Therefore, as long as the insurance contract in this case remains effective, the right to claim the cancellation refund did not occur, as well as the insurance accident under the insurance contract in this case did not occur, the plaintiff's claim in this case was unjust.

3. Determination

Therefore, the attachment and assignment order of this case indicates upon the plaintiff's application as the claim for refund of KRW 5,700,000 out of the insurance money of KRW 6,700,000 based on the insurance contract of this case. However, it is reasonable to interpret that the claim for cancellation refund acquired by the policyholder upon the termination of the insurance contract of this case is also subject to the claim for cancellation refund which is based on the premise that the insurance accident of this case occurred under the insurance contract of this case. Furthermore, the termination right of the insurance contract of this case is not a continuous right, and it is recognized that the non-party 1 does not have any special limitation upon the termination of the insurance contract of this case. Thus, even if the claim for cancellation refund against the defendant company of this case is a claim under the condition of suspension, such as the termination of the insurance contract of this case, the attachment and assignment order of this case should be considered to have already been exercised by the plaintiff to the non-party 1, the debtor of this case through the execution court delivered to the defendant company of this case.

Therefore, the defendant company is obligated to pay to the plaintiff the total amount of KRW 5,00,000,00, which is a part of the cancellation amount, and damages for delay at the rate of 5% per annum under the Civil Act from November 5, 2002 to May 31, 2003 and 20% per annum under the Special Act on the Promotion, etc. of Legal Proceedings from the next day to the date of full payment.

4. Conclusion

Therefore, the plaintiff's claim of this case is justified within the scope of the above recognition, and the remaining claims are dismissed without merit. Since the judgment of the court below is unfair in conclusion, the part against the plaintiff who ordered the above payment is revoked and the court below ordered the defendant company to pay the above amount and dismissed the remaining appeal as it is without merit. It is so decided as per Disposition.

Judges Song Jin-chul (Presiding Judge) The degree of maximum vote