금융계약의 경개와 중장기성 수출보험의 법률관계- 프로젝트 파이낸스 방식의 금융계약을 중심으로 -

Abstract

The Facility Agreement is the subject matter insured of the Medium and Long-term Export Credit insurance and policyholder(s) is a bank(s). Because of changes in international economic conditions, the bank may have to transfer their own rights of the Facility Agreement to a third party. In the case of the Facility Agreement governed by the English Law, the obligations cannot be transferred to third parties in the manner of assignment; only a novation can be used for the transfer of it. Once the Facility Agreement is novated, in addition to the legal relationship of the Facility Agreement, the legal effects of the Medium and Long-term Export Credit Insurance contract change. Since the identity of the new contract is not recognized as the original one, the Medium and Long-term Export Credit insurance will be invalid due to the loss of the subject matter insured. If the insurer accepts the novation of the Facility Agreement without any condition, the insurer may face difficulties in effectively exercising subrogation right, such as the loss of security interests. If the insurer does not permit the policyholders to use novation to transfer their rights to the third party, the marketability of the Medium and Long-term Export Credit Insurance in the financial market will be hindered. However, if it is recognized indiscriminately, it can lead to legal conflicts. Therefore, both the insurer and the policyholder can lead to contradictory results, affecting the merit of the product. If the policyholder believes that the risk for the purpose of the insurance has been transferred to the insurer and the insurance contract is not maintained and the risk of the insurance contract becomes known after the accident, the policyholder will suffer economic loss. Considering both the commercial viability and the stability of the Medium and Long-term Export Credit Insurance, it is necessary to consider whether the insurer can permit the novation and if so, how. First, in terms of stability, except for special cases, the insurer should not allow the policyholder to novate the Facility Agreement to the third party. However, if the insurer has sufficient conditions to exercise suitable effective insurer rights, it may be possible to allow the novation in the restricted situation.