책임보험계약상 제3자의 직접청구권의 법적 성질- 대법원 2017. 10. 26. 선고 2015다42599 판결 -

초록

There are several issues in this case, but this study focuses on the legal nature of direct claims of third parties in liability insurance. How this is viewed will affect the duration of the statute of limitations and the contents of the protest against a third party by the insurer. The theory of the right of claim for damages see that the insurer collectively has taken over the indemnity duty of the insured. Thus, the insurer and the insured bear the same debt and is called a solidarity debt. On the contrary, the theory of the right of claim for insurance money insists that the direct claim is only a claim for insurance money against the insurer. And the theory insists that the direct claim is completely different from the right to claim damages for the assailant(the insured). Some decisions of our court are based on the former, and others are based on thd latter. In recent years, as in this case, the decisions are mainly based on the theory of former. It is very questionable whether the insurer has taken over the indemnity liability of the insured person. So is that the insurer's debt to the victim is a indemnity liability. The theory of the right of claim for indemnity insists that the liability insurance should protect the victim (third party) as much as possible. However, this efforts should not be over. It should not interpret the direct claim beyond the legal regulations. Even if the importance of the protection of victims is more emphasized in liability insurance, it should stop at a reasonable limit. Victim protection is sufficient to allow him to claim directly to the insurer. Beyond this, it is the surplus of interpretation. In addition, it is questionable if it meets global standards. The theory of the right of claim for indemnity insists that there are the same cases abroad(especially Germany), but it is not. In German compulsory liability insurance, there is no legal contents or the theory of the German scholar that the insurer has taken over the obligation of the insured person. But for exceptional cases, it is different from us in that they don't even permit direct claims of the victim in voluntary liability insurance. In the United Kingdom, the United States and Japan, direct claims themselves are either very limited or disallowed. The interpretation of the liability insurer's intention as having taken over the insured's debt is completely wrong. This has problems in the theories of civil law. The Commercial Act has no such contents of presumption or treating. Under the liability insurance contract, I can not agree that the insurer has concurrently taken the indemnity duties of the insured person. And the direct claim of the victim is not a claim for damages and should be regarded as a claim for insurance money. I oppose the Supreme Court's opinion on this point.

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