책임보험상의 직접청구권을 둘러싼 법적논점에 관한 고찰

Abstract

It is very clear that the introduction of the third party's direct right of action in a liability insurance has played an important role in a matter of protection of the third party(sufferer). This introduction in 1991 which gave this direct right of action to the third party who is not a contracting party was mainly decided by a matter of insurance policy to protect the third party. Although a lot of legal issues such as priority between the direct right of action and the right to claim for insured amount, res judicata, claim of right of defense, set-off and extinctive prescription as regarding this direct right of action have occurred, the concerned insurance law fails to provide proper solutions to those questions. Under this circumstance, we may rely on the academic interpretation and case laws. The first step should be the question of what is the legal character of the direct right of action (right to claim for damages? or right to claim for insured amount?). Even though a large number of academic interpretation and case law support the view of right to claim for damages, the above legal issues should not be interpreted based on only the view of right to claim for damages. It is because we should also take into account the intrinsic attribute of a liability insurance which is the protection of the insured. In other words, when we discuss the above issues, we should consider not only the view of protection of the third party but also the view of protection of the insured. Ultimately, article 724 of Korean Commercial Law should be revised again containing the clear wording for the above legal issues with a view of protection of insured as well as protection of the third party.