[1] The meaning of an insurance accident and the method of determining the specific amount of an insurance accident in a contract performance guarantee insurance / Where the insurance clause provides that the non-performance of a main contract without justifiable grounds of the debtor as an insurance policyholder is not required within the insurance period for which the termination or termination of the main contract is stipulated as an insurance accident, whether the non-performance of the main contract without justifiable grounds of the debtor

[2] Standard for determining whether a contractor’s contractual nonperformance corresponding to an insurance accident in a contract performance guarantee contract related to a construction contract exists / Whether it can be readily concluded that a contractor’s performance of a contract becomes impossible due to a cause attributable to the contractor solely on the ground that the contractor filed an application for commencing an rehabilitation procedure during the contract period (negative)

[1] Articles 638 and 665 of the Commercial Act; Articles 105, 543, and 546 of the Civil Act / [2] Articles 638 and 665 of the Commercial Act; Articles 105, 543, 546, and 664 of the Civil Act

[1] [2] Supreme Court Decision 2004Da16976 Decided April 28, 2006 (Gong2006Sang, 908) Supreme Court Decision 2013Da27978 Decided July 24, 2014 / [2] Supreme Court Decision 86Meu216 Decided June 9, 1987

Echid Co., Ltd. (former Industrial Development Co., Ltd., Ltd., Ltd., a litigation taking over the Echidex Industry Development Co., Ltd. (Law Firm LLC, Attorneys Park Jong-bong et al., Counsel for the plaintiff-appellant-appellee)

Seoul Guarantee Insurance Co., Ltd. (Law Firm Korea, Attorneys Kim Gyeong-hwan et al., Counsel for the plaintiff-appellant)

Comprehensive landscape in consent of the corporation

Seoul Western District Court Decision 2015Na33100 decided May 12, 2016

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

The grounds of appeal are examined.

1. A. An insured incident refers to an uncertain accident that specifies the insurer’s obligation to pay the insurance proceeds in an insurance contract. The specific issue of an insurance accident in a performance guarantee insurance contract ought to be determined by comprehensively taking into account the insurance clause incorporated into account the terms and conditions of the insurance contract and the details of the insurance policy and the main contract cited in the terms and conditions of the insurance contract (see, e.g., Supreme Court Decision 2004Da16976, Apr. 28, 2006). If the insurance terms and conditions stipulate that the nonperformance of the main contract, which is not a policyholder, is not within the insurance period for which the rescission or termination of the main contract is not a justifiable cause of the obligor, barring any special circumstance, is an insurance accident for which the obligor’s failure to perform the main contract is an insurance accident without any justifiable reason, and is not an insurance accident for which the rescission or termination of the main contract is not an insurance accident, but is merely an exercise of the right to claim insurance proceeds (see, e.

B. Whether a contractor’s contractual performance falling under an insurance accident exists under a contract for construction work should be determined based on the agreed contract amount, construction period, construction contents, etc. (see Supreme Court Decision 86Da216, Jun. 9, 1987). Even if a contractor applied for commencement of a contract during the contract period, it cannot be readily concluded that the performance of the contract was impossible due to its own fault solely for that reason. Determination of whether the contract was impossible by comprehensively taking into account all the circumstances, including the degree of performance of contract before and after the application for commencement of a contract, the reason leading up to the application for commencement of a contract, the continuation or resumption of business after the application for commencement of a contract, financial standing, etc. (see Supreme Court Decision 2004Da16976, Apr. 28, 2006, etc.).

2. The reasoning of the lower judgment and the evidence duly admitted reveal the following.

A. On June 10, 2013, the Plaintiff entered into a contract with the Intervenor’s Intervenor (hereinafter “ Intervenor”), under which the Plaintiff entered into a subcontract with the Intervenor by setting the contract period of KRW 346,181,901 as the contract amount, the contract deposit of KRW 34,618,190 as the contract deposit, the contract period of KRW 34,618,190 as the contract period, and the contract period from June 10, 2013 to March 15, 2014 as the contract terms and conditions related to the termination, etc. of the instant subcontract are as follows.

1) Article 25(1)2 of the General Conditions of Contracts: In cases where it is clearly acknowledged that the construction cannot be completed in the air due to a cause attributable to the intervenor, such as default and bankruptcy, the plaintiff may rescind or terminate the whole or part of the contract in question, if the contract is not performed within the reasonable period after the written notice of performance of the contract was given by the plaintiff.

2) Article 6(1)2 of the terms and conditions of the special contract: Where a serious business operation situation (including sub-do, discontinuance of business, suspension of business, revocation of license and license reflects payment, bankruptcy, dissolution, dissolution, filing of a company reorganization application, filing of an application for commencement of company reorganization procedure, filing of an application for commencement of company reorganization procedure, etc.), the intervenor shall lose the benefit of the time, and the plaintiff may terminate the contract by notifying the plaintiff of a document containing the details of the contract termination without due process, such as the highest time, or without due process. In such cases

B. On July 11, 2013, the Defendant concluded a performance guarantee insurance contract with the Intervenor (hereinafter “instant performance guarantee insurance contract”) and issued a contract guarantee that was concluded from June 10, 2013 to May 14, 2014 (the judgment of the lower court is indicated as the date of March 15, 2014, but it is evident that it is a clerical error in light of the record) from among the ordinary terms and conditions of the instant performance guarantee insurance contract to the insured, the insured, the guaranteed amount of KRW 34,618,190, and the guarantee period. The following provisions are as follows.

1) The Company is bound to compensate for the loss suffered by the insured who is the obligee as a result of the obligor’s failure to perform the obligation stipulated in the contract(s) entered in the insurance policy (s) and the terms and conditions (Article 6).

2) The insured shall cancel and terminate the principal contract before claiming insurance proceeds (Article 8(1)). If the insured does not cancel and terminate the contract under paragraph (1), the company shall not compensate for losses (Article 8(2). It does not require that the insurance period of cancellation and termination under paragraph (1) is within the insurance period (Article 8(3)).

3) An insured incident is deemed to have occurred when the contractor fails to perform the contract without good cause (Article 9).

C. On August 26, 2013, an intervenor filed an application for commencing rehabilitation procedures with the Suwon District Court (it is clear that the judgment of the lower court was written on August 28, 2013, but in light of the record, it is obvious that it is a clerical error). On September 6, 2013, the Plaintiff notified the intervenors that the subcontract is terminated under Article 25 of the General Conditions of Contracts and Article 6 of the Special Conditions of Contracts, and filed a claim for insurance money against the Defendant on March 18, 2014.

3. We examine in light of the legal principles as seen earlier.

A. The terms and conditions of the instant performance guarantee insurance contract stipulate that the Intervenor’s non-performance of the contract without justifiable grounds is not required within the insurance period that cancels and terminates the principal contract as an insured event. In light of this, it is reasonable to deem that the Intervenor’s non-performance of the instant subcontract without justifiable grounds is an insured event under the performance guarantee insurance contract of this case.

B. Article 6(1)2 of the terms and conditions of the contract agreement entered into as the instant subcontract agreement provides that the Plaintiff may terminate the instant subcontract and the contract deposit equivalent to the Plaintiff’s damage shall belong to the Plaintiff, regardless of whether the Intervenor was not able to perform his/her obligation. However, this reservation reserveds the right to termination of the contract that allows the termination of the contract if a certain reason arises, regardless of whether the Intervenor was not able to perform his/her obligation. Therefore, even if the Intervenor filed an application for commencement of the contract during the contract period, it is merely merely a cause for termination of the contract, and it cannot be deemed that there was a default

The issue of whether an intervenor, who falls under an insured incident, has a contractual obligation should be determined based on the amount of construction, period of construction, construction contents, etc. of the subcontract in this case. Therefore, solely on the fact that the intervenor filed an application for commencing rehabilitation procedures during the contract period, it cannot be readily concluded that the execution of the subcontract in this case was impossible due to the intervenor’s failure to perform the contract before and after the application for commencing rehabilitation procedures, the cause leading to the commencement of rehabilitation procedures, the continuation or resumption of business after the application for commencing rehabilitation procedures,

C. Nevertheless, without examining the aforementioned circumstances, the lower court determined that the application for commencing rehabilitation procedures constitutes cases where it is impossible for the Intervenor to perform the contract due to a cause attributable to the Intervenor, and that the Defendant is liable to pay insurance proceeds to the Plaintiff as long as the Intervenor terminated the contract on the ground that the Intervenor failed to perform his/her obligation under a special contract. In so determining, the lower court erred by misapprehending the legal doctrine on the occurrence of insurance accidents in the performance guarantee insurance contract, which led to the failure to exhaust all necessary deliberations,

4. Therefore, without examining the remaining grounds of appeal, the part against the defendant among the judgment below against the defendant 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 Kwon Soon-il (Presiding Justice)