[1] Whether the legal principles of insurance are applied to the payment guarantee of subcontract consideration by the Construction Financial Cooperative (affirmative)

[2] In order to effectively establish a guarantee insurance contract, whether the “influence” and “a bona fide” are required to require that the occurrence of an insurance accident at the time of the contract is not confirmed (affirmative)

[1] Article 56 (1) 1 of the Framework Act on the Construction Industry, Article 664 of the Commercial Act / [2] Articles 638 and 644 of the Commercial Act, Articles 108 and 428 of the Civil Act

[1] Supreme Court Decision 2008Da88221 Decided July 9, 2009 (Gong2009Ha, 1420) / [2] Supreme Court Decision 2009Da81623 Decided April 15, 2010 (Gong2010Sang, 878)

The plaintiff in bankruptcy of Hosung Corporation, the bankruptcy debtor corporation, the bankruptcy debtor corporation, the bankruptcy debtor corporation

Construction Financial Cooperative (Law Firm Barun, Attorneys Kang Ji-hun et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2013Na201209 decided January 10, 2014

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Seoul High Court.

The grounds of appeal are examined.

The defendant's payment guarantee of subcontract consideration is similar in nature to guarantee insurance as a mutual insurance conducted for the mutual interest of the members of the association (see Supreme Court Decision 2008Da88221, Jul. 9, 2009, etc.).

Meanwhile, according to Article 644 of the Commercial Act, if an insurance accident cannot occur at the time of the insurance contract, the insurance contract is null and void unless both parties to the insurance contract and the insured are unaware of it. The essence of the guarantee insurance contract as an insurance contract is, so that at least, the contract has no fixed and conclusive at the time of the contract in order to effectively establish the insurance contract. If the main contract of the guarantee insurance is null and void as a false declaration of agreement, the guarantee insurance contract is null and void because it constitutes a case where an insurance accident cannot occur if the main contract of the guarantee insurance is null and void as a false declaration of agreement. The reason for invalidity of the guarantee insurance contract is that the insurer of the guarantee insurance contract fails to meet the unique requirements as an insurance contract, and thus, the insurer of the guarantee insurance contract may claim the invalidation of the guarantee insurance contract against a third party who did not know of the situation that the main contract was a false declaration of agreement (see Supreme Court Decision 2009Da81

The lower court determined that the Defendant’s assertion that the instant subcontract payment guarantee contract was concluded with the second subcontract modification contract as the main contract and the second subcontract modification contract is invalid as the second subcontract modification contract is invalid as the counter-party mark, and that the Plaintiff, a trustee in bankruptcy, also constitutes a bona fide third party who is not able to oppose the invalidity of the counter-party mark, and rejected the Defendant’s assertion without further determination as to whether the second subcontract modification contract is a false counter-party mark

However, the above determination by the court below is difficult to accept for the following reasons. In other words, if the second subcontract amendment contract, which is the main contract of the subcontract price guarantee contract, becomes invalid as a false representation as alleged by the defendant, the subcontract price guarantee contract is invalid by Article 644 of the Commercial Act, since the occurrence of an insurance accident is not possible. In this case, even if the plaintiff is a bona fide third party with respect to the circumstances of the second subcontract modification contract, the defendant may assert the invalidity of the subcontract price guarantee contract against the plaintiff in accordance with the aforementioned legal principles. Therefore, the court below should have deliberated and determined whether the second subcontract modification contract was a false representation. Nevertheless, the court below erred by misapprehending the legal principles on the contingency of the insurance contract and the good faith, which affected the conclusion of the judgment.

Therefore, without examining the remaining grounds of appeal, the part against the defendant among the judgment below is reversed, and that part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Min Il-young (Presiding Justice)