제3채무자인 보험회사가 보험자면책 사유가 있음에도 질권자에게 보험금을 지급한 경우 부당이득반환의 당사자 - 대법원 2015. 5. 29. 선고 2012다92258 판결 -

Abstract

If a debtor borrowed money creditors, the creditors often require collateral such as real estate or personal property. But when this becomes collateral loss due to fire etc., the collateral is not worth. If the debtor sign up a fire insurance for the collateral in preparation for the value declines of the collateral, the creditors would set the pledge on the insurance claim. If a insurance accident not occurred, or if there is a exclusions, the insurer is not obliged to pay insurance money to the pledgee. Because the rights of the pledgee against the insurer assumes the insurer's obligation to pay insurance for the debtor, the insured. Nevertheless, the insured person wrongfully charged insurance money by filing a false insurance claims data. The insurer was paid to the insurance pledgee. If so, the insurer should charge for the return of unjust enrichment against whom a payment equivalent insurance. The Supreme Court’s Decision has ruled that The insurer may request the parties, the pledger not the pledgee to return unjust enrichment. However, we believe In this case, the subject of unjust enrichment is the pledgee in terms of the Insurance Act as well as in terms of unjust enrichment law. First, a enrichment between three parties is only one type of a unjust enrichment. So We have to put more emphasis on the 'unjust enrichment' rather than a 'triangle'. Second, when there is setting up a pledge for insurance claims, the pledgee has to bear the risk of non-occurrence, a possibility of indemnification for accident insurance by himself. We can hardly say that the pledgor passed on the risk of contracts concluded under his responsibility to a third party pledgee. And third, in this case, it should be determined based on who was paid to actually rather than who did create problems of unjust enrichment. Finally, the Supreme Court’s Decision ruled that a defense of insurer in accordance with the indemnity may change whether before a payment of insurance money or not. We do not agree with this. If the insurer is not entitled to claim the defense of the indemnity to the pledgee with regard to benefits, the insurer's unjust enrichment claim itself would be difficult to be recognized from the beginning. In conclusion, unlike the Supreme Court’s Decision, it is more consistent with our civil law to interpret that the insurer may request the pledgee to return unjust enrichment when an insurance company paid insurance money a pledgee despite of a cause of exclusions.