[1] In a case where the respondent, etc., who is the insured, has entered into a guarantee insurance contract whose repayment is guaranteed by the insurer in the event of receiving the title of debt for the right to claim damages and the right to claim reimbursement of litigation costs due to the unfair application between the insurer and the policyholder, whether Article 724 (2) of the Commercial Code, which is the provision of the

[2] In the case of guarantee insurance, whether the insured acquires a direct claim against the insurer without a title of debt as stipulated in the insurance clause according to its guarantee nature (negative)

[1] In case where the respondent, etc., who is the insured, received a title of debt for the claim for damages and the claim for reimbursement of costs of the lawsuit due to the unfair application by the policyholder, the deposit guarantee insurance contract guaranteed by the insurer, in which the insurer is liable for damages to a third party due to an agreed accident during the insurance period, shall not be directly or analogically applied to the above deposit guarantee insurance contract, which is a direct claim of the victim (the third party) recognized under the provisions of the Liability Insurance Act, because the basic nature of the insurance contract, the insured, the type and nature of the secured damages, the main purpose of the insurance, etc. are different from that of the insurance contract, and the basic nature of the insurance contract which compensate

[2] Since a guarantee insurance contract is substantially aimed at the same effect as a guarantee contract with its nature and with the same effect as the guarantee contract, even if the insured compensates for losses incurred by the insured due to the insured's failure to perform his/her obligation under the main contract, such compensation shall be covered within the scope of the insured amount under the terms and conditions of the insurance contract. Thus, from the guarantee nature of the guarantee insurance contract, it cannot be deemed that the insured acquires a direct claim against the insurer without the name of the

[1] Article 724(2) of the Commercial Act; Articles 112 and 475(3) of the Civil Procedure Act; Article 15-2 of the Rules of Civil Procedure / [2] Article 428(1) of the Civil Act; Article 724(2) of the Commercial Act; Articles 112 and 475(3) of the Civil Procedure Act; Article 15-2 of the Rules of Civil Procedure

[2] Supreme Court Decision 89Meu25912 delivered on May 8, 1990 (Gong1990, 1243)

Marin fishing village fraternity as a corporation

Korea Guarantee Insurance Co., Ltd. (Attorney Cho Han-chul, Counsel for defendant-appellee)

Gwangju High Court Decision 97Na1562 delivered on March 26, 1998

The judgment below is reversed and the case is remanded to the Gwangju High Court.

We examine the grounds of appeal.

1. On the first ground for appeal

According to the reasoning of the judgment below, the court below found that the non-party, who is the representative of the non-party Nam-ri division, issued an insurance policy indicating that the non-party, as the representative of the non-party Nam-ri division, at the time of entering into the insurance contract with the defendant, entered the insurance subscription in the trade name column in the written application for insurance, stating "non-party," "non-party," and "non-party," and entered into the insurance contract in the name of "non-party," without indicating the representative of the Nam-ri division of the fishing village fraternity, which is the non-party, in the insurance contract column in the written application for insurance, but the defendant, who received the above insurance subscription, stated the "non-party, the non-party," as the insured's column in the deposit insurance policy (Evidence No. 5) and issued the insurance policy indicating the applicant's column as the non-party Nam-ri division, even though the non-party, at the time of entering into the insurance contract, did not clearly indicate that the insurance contract of this case was the non-party, as the insurer.

In light of the records, the above fact-finding and judgment of the court below are just, and there is no error in the misapprehension of legal principles as to the standing for party as otherwise alleged in the ground of appeal.

The grounds of appeal disputing this point are without merit.

2. On the second and third grounds for appeal

According to the reasoning of the judgment below, the court below rejected the defendant's defense on the ground that Article 724 of the Commercial Act, which provides for the third party's right to direct claim against the insurer in liability insurance, should also apply mutatis mutandis to the guarantee insurance contract, on the ground that, with respect to the defendant's defense against the third party, the insurer has a status as a guarantor in that it takes over the liability for damages against the insured together with the policyholder in the event that the policyholder is liable for damages against the insured, and in view of the fact that the insured event of the insured's future uncertainty as the occurrence of the obligation to compensate for damages against the insured by the policyholder is an insured accident, the guarantee insurance also has the nature of the insurance accident scheduled.

However, according to the deposit insurance contract of this case, the deposit insurance contract of this case is a guarantee insurance contract in which the respondent, etc. who is the insured, received the title of debt for the claim for damages and the claim for reimbursement of costs of lawsuit from the insured due to the improper application of the applicant, etc. who is the policyholder. If the insured is liable for damages to a third party due to an agreed accident during the insurance period, the insurer cannot directly or analogically apply Article 724 (2) of the Commercial Act, which is the direct claim of the insured, the insured, the type of the secured damage, the nature of the liability insurance, the main purpose of the insurance, etc., which is the direct claim of the victim (the third party) recognized by the provisions of the Liability Insurance Act under the Liability Insurance Act, is different from the basic nature of the insurance contract, the insured, the type of the secured damage, the nature of the guaranteed damage, the main purpose of the insurance, etc., and even if the guarantee insurance contract aims at the same effect as the guarantee insurance contract of this case, the insurer shall not be deemed to compensate for the insured's losses due to the insured's failure to perform obligations under the main contract.

Nevertheless, the court below's rejection of the defendant's defense that the plaintiff could not immediately claim damages against the defendant without the name of debt is erroneous in the misunderstanding of legal principles as to the claim of the insured of the deposit insurance contract of this case, and it is clear that this affected the judgment.

The argument pointing this out is with merit.

3. Therefore, the judgment of the court below is reversed, and 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.

Justices Lee Jae-hee (Presiding Justice)