ELB Co., Ltd. (Attorney Yang Jae-soo, Counsel for the plaintiff-appellant)

Seoul Guarantee Insurance Co., Ltd. (Attorney Choi Sung-sung, Counsel for defendant-appellant)

May 17, 2011

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendant shall pay to the plaintiff 10 million won with 20% 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

A. On September 12, 2008, the Plaintiff entered into a contract for the supply of electronic equipment equivalent to KRW 142,043,000 for the total price of supplied goods with the non-party forest construction company (hereinafter "forest construction"), and on September 26, 2008, the Plaintiff was guaranteed the payment of KRW 100,000 out of the total price of supplied goods from forest construction.

B. The forest construction entered into a performance guarantee insurance contract with the Defendant with the content that the principal contract, the insured, the insurance amount of KRW 100,000,000 for the Plaintiff, the insurance amount of KRW 100,000, and the insurance period from September 19, 2008 to January 31, 2009 (hereinafter “the instant guarantee insurance contract”), and issued the instant guarantee insurance bond to the Plaintiff.

C. On October 1, 2008, the Plaintiff issued a tax invoice (total amount of KRW 142,043,000) on October 31, 2008 after completing the installation of electronic equipment to elim construction in accordance with the above electronic equipment supply contract, and on November 28, 2008, the forest construction issued and delivered a promissory note of KRW 100,000,000,000, which was as of February 28, 2009, to the Plaintiff on November 28, 2008, but the said promissory note was not settled at the due date.

D. On April 3, 2009, the Plaintiff filed a claim with the Defendant for the payment of insurance money on the basis of the said guaranteed insurance policy, but the Defendant rejected the claim.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 4 (including additional numbers), Eul evidence Nos. 2 and 3, the purport of the whole pleadings

2. The parties' assertion and judgment

A. The parties' assertion

The Plaintiff asserts that, after the Plaintiff fulfilled all the electronic equipment supply contracts entered into between the forest construction, the amount of KRW 100,000,000 out of the price of delivered goods is delivered from the forest construction within the insurance period stipulated in the instant guarantee insurance contract, but not settled. Therefore, this constitutes an insured incident stipulated in the instant guarantee insurance contract, and therefore, the Defendant should pay the Plaintiff the insurance amount of KRW 100,000,000 and the damages for delay.

As to this, the Defendant asserts that the payment date of promissory notes delivered by the Plaintiff from the Dailim Construction is from September 19, 2008 to January 31, 2009, which is the insurance period stipulated in the instant guarantee insurance, and that the due date for the payment of the price to the Plaintiff does not fall under the insurance period stipulated in the instant guarantee insurance, and therefore, even if the Dailim Construction failed to pay the said promissory notes to the Plaintiff, it cannot be deemed as an insurance accident stipulated in the instant guarantee insurance contract, and thus, it cannot be accepted as the Plaintiff’s claim.

(b) Markets:

The issue of this case is whether the insured events stipulated in the guarantee insurance contract of this case, i.e., whether the due date is within the insurance period in relation to the payment date of promissory notes received from the forest construction, and this is examined as follows.

According to the evidence evidence Nos. 1 and 3 of this case, payment under the above electronic equipment supply contract shall be made once a month at a regular end of the month, but shall be made at least three months before and after the following month as of February 28, 2009. According to the terms and conditions of the guarantee insurance contract of this case issued by the defendant, the fact that "the company shall compensate for losses suffered by the insured who is the creditor due to the failure of the policyholder, who is the debtor, to pay the payment obligations stipulated in the main contract (limited to the obligations within the insurance period)" can be recognized as stated in the insurance policy and in accordance with the terms and conditions, and even if the plaintiff completed the duty of performance under the electronic equipment supply contract of this case on October 31, 208, the payment period of which is 10,000,000 won as of February 28, 2009 to 200,000 won as of February 29, 2009 to 30,000.

Therefore, the plaintiff's assertion that the obligation to pay KRW 100,000,000 to the plaintiff of the forest construction is within the insurance period stipulated in the guarantee insurance contract of this case is without merit.

Meanwhile, the Plaintiff asserts to the effect that the application for commencement of rehabilitation procedure on January 8, 2009 was made by the commencement of the rehabilitation procedure for the Plaintiff at that time, and that the obligation to pay the price to the Plaintiff was due. However, among the contractual terms of the electronic equipment supply contract (the prime contract as stipulated in the instant guarantee insurance contract) concluded between the Plaintiff and the forest construction, the application for commencement of rehabilitation procedure for the forest construction does not provide for the grounds for loss of the benefit of time, and there is no evidence to prove that the occurrence of the insurance accident occurred within the insurance period stipulated in the instant guarantee insurance contract. Thus, the Plaintiff’s assertion on this part is without merit

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

Judges Park Jong-chul