보증보험자의 주계약상 보증인에 대한 구상권

Abstract

Guarantee insurance is an insurance that promises the debtor to indemnify the damage of the creditor which may arise in regard to the performance of obligation under contracts of sale, employment, works or others and receives from the debtor. Guarantee insurance should be distinguished from guarantee by a surety. A surety promises a creditor that he will be paid ; an insurer promises to indemnify him if he is not. While payment by a surety discharges the principal debt, payment by an insurer does not affect it. In the former case the surety has a direct right against the debtor, in the latter case the insurer is only subrogated to the rights of the assured against him. Someone asserts that the legal character of guarantee insurance is an insurance, others assert a suretyship. In fact, guarantee insurance has the both characters of a suretyship and an insurance. Therefore, guarantee insurance is applied by the insurance contract law and by the rules of suretyship. If any one of a number of co-sureties paid the whole debt, he can be indemnified the proportion which the others are bound to bear. Co-sureties has the contribution in suretyship contract. When the insurer pays the sum-insured to the insured, can he claim for the compensation of the contribution to the surety in the guarantee insurance? Our supreme court denied a right to indemnity between the insurer and the surety until last year, because the insurer can not be qualified for the surety. The whole members' judicial decision of Korea supreme court acknowledged the right to indemnity between an insurer and a surety on the ground that the legal nature of guarantee insurance is more close to a suretyship than a insurance. I think that Korea supreme court' judicial decision about the contribution is proper in that the responsibility for damage is distributed fairly.