Applicant Co., Ltd. (Law Firm Won, Attorneys O Sung-jin et al.)

Respondent Co., Ltd. (Law Firm Shin & Shin, Attorney Park Jong-soo, Counsel for defendant-appellant)

Seoul Central District Court Order 2005 non-conforming71 dated October 10, 2005

Seoul High Court Order 2005Ra964 dated December 27, 2006

Supreme Court Order 2007G154 Dated April 15, 2009

1. The decision of the first instance shall be revoked;

2. The petitioner's motion of this case is dismissed.

3. The total costs shall be borne by the applicant.

The decision of the first instance shall be revoked. The decision of the first instance shall be revoked. With respect to the determination of compensation for the damage of feld mechanical devices (hereinafter referred to as the “accident”) that occurred in the field of Gwangju Urban Railroad 1 Line 1 Line 1 Line 1 Line 1 Line 2 in Gwangju Geum-nam, a person who holds an engineer’s certificate and is deemed appropriate shall be appointed as an arbitrator in respect of the determination

1. procedural defects in the decision of the court of first instance;

In the event that either party seeks to appoint an arbitrator in accordance with Article 12(3) and (4) of the Arbitration Act as a non-contentious case, as the case did not reach an agreement on the appointment of an arbitrator by the parties who agreed to arbitration as stated in the instant application, the case at issue is a non-contentious case, and such examination should not be open to the public pursuant to Article 13 of the Non-Contentious Case Litigation Procedure Act. However, the court of first instance is obvious in the record that the examination was open to the public on April 6, 2005. Thus, the decision of the court of first instance cannot be maintained any more due to serious procedural defects.

2. Judgment on the petitioner's assertion

A. Applicant's assertion

The Claimant, from the Gwangju subway Construction Headquarters, concluded a construction contract with the Respondent by obtaining a contract for the construction work from the Gwangju subway Construction Headquarters, and concluded the construction work contract with the Respondent. The above insurance contract stipulates that if a dispute arises between the parties, a third party holding a license selected by mutual agreement between both parties shall request an arbitration and follow the arbitration. On January 25, 2001, the Claimant did not consult on the appointment of an arbitrator after the occurrence of the instant accident, so the court must appoint an appropriate arbitrator.

B. Determination

(1) According to the records, the applicant entered into an insurance contract with the respondent around November 24, 1997 (the trade name at the time was changed to the trade name as of January 3, 2007) with "applicant"; the insurance period from November 3, 1997 to July 3, 2001; the total insurance amount as "118,500,000,000" (the "insurance contract in this case"); the insurance subscription form (No. 3) prepared by the applicant in the course of entering into the insurance contract in this case is difficult to say that the insurance item is the subject matter of construction, "construction machinery and tools for construction", "construction equipment for construction", "loss removal expenses", "construction equipment for construction works for a third party", and "construction machinery and equipment for construction works for which the applicant is not included in the insurance contract in the "construction machine insurance contract" or "construction equipment for construction works for 00 days" as the subject matter of the construction contract in this case, and it is not included in the "construction insurance contract for 00 days" or "construction equipment".

The Respondent did not explain that the construction machinery of this case is not included in the insurance purpose of the insurance contract of this case. The Respondent paid the insurance premium calculated by the Respondent based on the total purchase amount of insurance including the construction machinery of this case. Thus, the Respondent asserts that the Respondent cannot refuse the payment of insurance money due to the accident of this case. However, as seen above, in order to conclude the insurance contract of this case as seen above, the Respondent's assertion on the ground that the Respondent's violation of the duty to explain by the Respondent is without merit.

(2) Even if it is assumed that the instant accident constitutes an insurance accident which is scheduled in the instant insurance contract, the right to claim is not only abstract right before the occurrence of the insurance accident, but also can be exercised from that time because the right to claim is determined as a specific right due to the occurrence of the insurance accident. Thus, in principle, the statute of limitations of the right to claim insurance claims shall commence from the time of the occurrence of the insurance accident (see Supreme Court Decision 2007Da19624, Nov. 13, 2008, etc.) unless there are other special circumstances (see Supreme Court Decision 2007Da19624, Nov. 13, 2008, etc.). The right to claim against the respondent based on the instant insurance contract is two years in accordance with Article 62 of the Commercial Act. However, since the period of extinctive prescription of the applicant's right to claim insurance claims has already been completed on March 17, 2005 at the time of the occurrence of the instant accident.

In relation to this, the applicant filed a claim with the respondent from March 2001 when he became aware of the damage to the construction machinery of this case from time to time, and the respondent did not file a separate claim with the respondent for insurance money after the adjustment of the damage claim of this case. However, the respondent refused to pay the insurance money of this case since September 13, 2004, the claimant's insurance claim against the respondent was suspended due to the approval of the respondent, and the period of extinctive prescription has run since September 13, 2004. Therefore, although the applicant asserted that the period of extinctive prescription has not yet expired, the accident processing guide (No. 6 of the lawsuit) submitted by the applicant as a material proving the fact of the approval of the respondent was dispatched to the applicant on or around April 26, 200, before the accident of this case, it cannot be deemed that the respondent approved the insurance claim of this case since the respondent was dispatched to the applicant on or around April 26, 200, and considering other data submitted by the applicant, it is difficult to conclude that the respondent explicitly approved the insurance money of the claimant.

The Claimant asserts that the Respondent, who had engaged in the conduct to believe that legal measures for preserving insurance claims are unnecessary, extinguished by the prescription period, is in violation of the good faith principle. However, according to the records, the Respondent requested compensation for the instant accident to the Respondent around March 1, 2001, but the Respondent around that time notified the Respondent that the instant accident does not constitute an insurance accident scheduled in the instant insurance contract. The Respondent again requested compensation for the instant accident around March 2004, and the Respondent notified the Respondent that the instant construction machinery was not covered by the insurance purpose on or around March 13, 2004, and that the Respondent notified the Respondent that the Respondent would not be compensated because it was not included in the Respondent’s insurance purpose, and that the Respondent did not request the Respondent to select and appoint an arbitrator to determine the instant accident, and that the Respondent did not constitute an abuse of rights since the Respondent did not appear to have been aware of the fact that it did not constitute an abuse of rights under the instant insurance contract.

(3) Meanwhile, the Claimant seeks to select an arbitrator for the determination of compensation of the instant accident. Thus, the Claimant’s assertion that the appointment of arbitrator should not be made on the basis of whether there is a claim to claim the Respondent for the determination of compensation of the instant accident. The purpose of arbitration is to properly, fairly, and promptly resolve disputes under private law. In addition, there is no claim to claim the Respondent against the Respondent, and it is difficult to recognize the need to select an arbitrator and to have the Respondent comply with arbitration even in the case of the instant case where the Respondent actively claims it, and it is difficult to recognize the need to select an arbitrator and to have the Respondent comply with arbitration (if the instant accident does not fall under an insured accident scheduled in the instant insurance contract as determined in the Gu or the above paragraph (1), it is difficult to deem

3. Conclusion

Therefore, the decision of the first instance court has significant defects in the procedure of disclosing the hearing of non-contentious case, and it is revoked, and the applicant's application of this case is dismissed as it is without merit. It is so decided as per Disposition.

Judges Lee Sung-sung (Presiding Judge)