하자보증보험에 따른 보험사의 구상권을 담보하기 위해 예금채권에 질권이 설정된 경우의 법적 쟁점 -대법원 2021. 2. 25. 선고 2020다248698 판결의 평석-

Abstract

The subject judgment is a leading case on the relationship between the defect coverage period in surety insurance and the pledge established on deposits and the assignment order. The conclusion of the Supreme Court is that, if there are no other special provisions in the insurance terms and conditions, even if the time of claim is after the defect coverage liability period, if the time of occurrence is within the defect coverage liability period, the guarantee insurance company bears the liability. In addition, it was held that in the case where a pledge is established on a deposit claim, the assignment order should not be viewed simply as a matter of priority between rights, but should first examine whether the claim exists and then judge the facts and rights relationship based on the results. In addition, the scope of secured claims to which comprehensive lien rights apply was prevented from being excessively expanded. In this paper, three legal principles that need to be supplemented to prevent disputes are presented. First, the defect collateral liability period should be interpreted taking into account the purpose of resolving structural information asymmetry and protecting financial consumers; second, for secured claims with pledges, comprehensive pledges should be prohibited in principle but the scope should be specified; and third, for deposit claims, the scope should be specified. The rights relationship between the established pledge right and the assignment order must be interpreted by acknowledging the effect of collection of the pledge right. By doing so, consistency with existing laws and financial practices can be secured and the effectiveness of conflict prevention can be increased.