청구권대위에 의한 구상권 행사와 제3자의 범위에 관한 고찰 -자동차보험 보상실무상의 문제점을 중심으로-

Abstract

The purpose of this essay is to consider the legal aspects of subrogation. Under most insurance policies, the insurer can require the insured to assign all right of recovery against a third-party who caused to the loss, but only for the amount of payment by the insurer to the insured. This process is called subrogation. Subrogation applies only against third-parties, so if a loss results from the insured's own negligence, there can be no subrogation. In the context of insurance, subrogation refers to the right of an insurer who has indemnified an insured in respect of a particular loss(i.e. paid a claim) to recover all or part of the claim payment by taking over any alternative right to indemnity which the insured possesses. Actually subrogation is to prevent the insured from recovering twice for the same loss and so preserve the principle of indemnity. Why does the law allow subrogation? It is sometimes suggests that subrogation prevents the “guilty” party from being “let off the hook” and ensures that he does not escape his financial responsibilities simply because the other party has been careful enough to arrange insurance. In fact, the main purpose of subrogation is simply to prevent what is known as the “unjust enrichment” of the insured- in other words to prevent him from unfairly profiting from his loss and so to preserve the principle of indemnity. The prevention of “unjust enrichment” is a principle of “equity”. The article 682, the Korean Commercial Law(KCL), provides the insurer's subrogation, but subrogation is not recognized in personal insurance(article 729, KCL). There are various opinions about the reason for rights of subrogation. Until recently there were differences of opinion about the basis of the principle of subrogation. There are three main source for such a right. It may arise in tort, in contract, under statute. Typically the third-party in subrogation means "except the insurer, the policy holder or the insured". There are argued bitterly that an extent of third-party about exercise of right on exoneration through subrogation in automobile insurance compensation affairs. In future, in order to resolve in problems of interpretation about scope of third-party, insufficient articles of the KCL will be filling and legislation is the need to complement theory through comparative studies.