責任保險의 第3者 直接請求權에 관한 考察 -법적 성질과 관련문제점을 중심으로-

Abstract

Liability insurance is a part of the general insurance system of indemnifying to protect the insured from the risks of liabilities imposed by legal claims. Originally, it protects the insured in the event he is sued on types of claims that come within the policy. However, the modern liability insurance protects not only the insured from the risk of liabilities but also the public(third party) from the risk of living in society. There was no privity of any sort between the injured person(third party)and the insurers. So, if the insured became bankrupt or went into liquidation the insurance money became part of the general assets distributable among creditors, and if the injured person had not already obtained judgment and levied execution in respect of his claim for damages his only right was to prove in the bankruptcy or winding-up. In order to correct this injustice, many countries established a law which gave a statutory right of direct claim against the insurers to the injured person(third party). The Korean Commercial Code §724 ② states the injured person(third party)'s right of direct claim against the insurers. Even though Korean Commercial Code allows a right of direct claim to third party, there is a lively controversy about the legal nature of this right. The majority opinion considers the right of direct claim as a same right of compensation claims for damages arising from tort. The minority opinion regards the right of direct claim as a same right of indemnity claims for insurance money. The Korean Supreme Court has decided that the right of direct claim is a same right of compensation claims for damages arising from tort. It seems to have the same viewpoint as the majority opinion. Actually, how to define the legal nature of the third party’s right of direct claim is a very important legal issue because many practical differences,such as the negative prescription, the insurer’s right of plea against the third party, and so on, are depended on this. This article advocates that the third party’s right of direct claim on Korean Commercial Code §724 ② is “similar”(not the “same”) to the right of compensation claims for damages arising from tort. Based on this legal nature, this article explains the negative prescription of third party’s right of direct claim and the insurer's right of plea against the third party.