Whether the insured of a guaranteed insurance contract is obligated to cooperate in the exercise of the insurer's right to indemnity against the debtor under the insurer's principal contract (negative)

[1] Article 639 of the Commercial Code, Article 484 of the Civil Code

Seoul Guarantee Insurance Co.

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

For dives

Changwon District Court Decision 2000Na5675 delivered on November 13, 2001

The part of the judgment of the court below against the plaintiff is reversed, and that part of the case is remanded to the Changwon District Court Panel Division.

1. Summary of the judgment below

(2) The lower court determined that, in light of the following facts: (a) the Intervenor’s obligation to pay the 10th of July 194 to the Intervenor for the payment of the 2nd of the insurance premium under the principle of good faith was 10,000,000 won to the Plaintiff; (b) the Intervenor’s obligation to pay the 2nd of the insurance premium under the principle of good faith to the Intervenor for the 1st of July 1994 to the 2nd of the termination of the insurance contract; and (c) the Intervenor’s obligation to pay the 1st of the insurance premium under the principle of good faith to the Intervenor for the payment of the 2nd of the 3rd of the insurance premium to the Plaintiff; (d) the Intervenor’s obligation to pay the 9th of the 1st of the 1st of the 6th of the 1st of the 6th of the 196th of the 1st of the 1st of the 6th of the 1st of the 1998th of the 2nd of the 2nd of the 19th of the 2nd of the 3rd.

2. The judgment of this Court

However, we cannot agree with the above judgment of the court below.

Guarantee insurance is an insurance contract for a third party with the content that the insurer accepts the compensation of the damage to be suffered by the insured (creditors under the main contract) due to the nonperformance by a policyholder who has a certain legal relationship with the insured. Therefore, the obligee under the main contract, the insured, naturally, has a claim for insurance payment against the insurer in the event of an insured incident. Therefore, unless there are special circumstances of a group of claims that the obligee under the main contract, the insured, bears the obligation to exercise the claim under the main contract against the principal obligor, barring special circumstances, the obligee under the main contract, who is the insured, can exercise the claim for insurance payment against the insurer

According to the records, the insurance terms and conditions of the second unit that Kim Jong-ho subscribed to the present loan prior to the occurrence of the insured's death or cancer, etc. shall be paid insurance money in the form of a pension after the commencement date of the payment of pension, but where the policyholder terminates the insurance contract before the occurrence of the insured event, the cancellation refund may be paid, and the policyholder may receive the loan within the scope of cancellation refund according to the method determined by the supplementary intervenor, but the loan of this case is not a loan under the provisions of the above insurance contract.

In light of the record, since Kim Jong-ho lost the benefit of the term of the loan of this case and the interest of the loan of this case was not repaid, there is no reason to deem that the insured event under the above 2 unit insurance contract of Kim Jong-ho has occurred or that the above 2 unit insurance contract has been terminated, and thus the plaintiff has the right to claim the return of insurance money or the cancellation refund to the intervenor of Kim Jong-ho. (No reason exists for the intervenor to cancel the above 2 unit insurance contract as the insurer) In order to set off against the plaintiff's claim of the loan of this case as the automatic claim of this case with the cancellation refund of the insurance contract of the above 2 unit of the above 2 unit of insurance contract as the requirement of Kim Jong-ho's insolvency, the plaintiff is not obliged to exercise the right to terminate the insurance contract of this case on the basis of the right to claim cancellation refund of the above 2 unit of insurance contract. If the intervenor of Kim Jong-ho cannot exercise the right to claim a set-off against the plaintiff under the above 2 unit of insurance contract as the obligee's right to claim of this case.

Furthermore, barring any special circumstance, it is difficult to view that the insured of a guaranteed insurance contract has a duty to cooperate in the exercise of the insurer’s right to indemnity against the obligor under the insurer’s principal contract in addition to the obligation to deliver the bond certificate, etc. under Article 484 of the Civil Act, and it is difficult to view that the Intervenor, for the Plaintiff, has a duty under the principle of good faith to notify the Plaintiff of the content of the insurance contract in the above two preceding units so that the Intervenor would take measures to preserve the claim against the cancellation refund

The judgment of the court below that otherwise determined is erroneous in the misapprehension of legal principles as to the exercise of the insured's rights, and the ground of appeal pointing this out is with merit.

3. Conclusion

Therefore, the part of the lower judgment against the Plaintiff is reversed, and that part of the case is remanded to the lower court for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Shin-chul (Presiding Justice)