보험계약 무효시 지급 보험금 반환과 관련된 소멸시효 기간에 대한 고찰

Abstract

The claim of payment of insurance coverage expires, by statute of limitation, if not exercised for three years.(Commercial Act Article 662) The issue here is how many years it takes to expire the claim for the return of the insurance coverage payment when it turns out that the payment was wrongly granted to the insured, because the insurance contract is null and void. There are three possible answers to this question. First, three years, which is the same period of time as the claim of payment of the insurance coverage. But Commercial Act article 662 clearly distincts the claim and the claim for the return of its payment. So, there is no persuasive legal ground for this argument. Second, five years because it likely belongs to a claim arising out of the commercial activities. “The statute of limitations for a claim arising out of a commercial activity shall expire if it is not exercised for five years” according to Commercial Act Article 64. It, however, could be criticised as this claim for the return comes not out of commercial activities but from the unjust enrichment because of the insurance contract null and void. Korean Civil Code article 741, the legal ground of unjust enrichment, provides that “[a] person who without any legal ground derives a benefit from the property or services of another and thereby causes loss to the latter shall be bound to return such benefit.” Third, ten years, which is the conclusion of this thesis. As the interest of the creditor seriously depends on this period of stutate of limitation, the period must be based on the explicit legal ground, which is Korean Civil Code article 162 paragraph 1. It provides that a claim expires if not exercised for a period of ten years. It is a default provision for the statute of limitation where no other period of statute of limitations is provided in this or other statutes.