책임보험자의 대위권의 실현에 관한 연구

Abstract

The insurer indemnifies the insured for the loss which was caused by perils assured and then to legally obtain the right that the assured or insured has against the insurance object or the third party is defined as “Right of Subrogation”.

According to the principle of property insurance contract, “ Bereicherungsverbot”, after the insurer indemnified the insured for loss, it prevents that the assured exercises the right against insurance object or third party and has the right transferred to the insurer.

This study has the purpose to consider about the point that between right of subrogation against insurance object in article 681 of commercial law and right of subrogation against the third party in article 682 of it, the right to indemnity of the insurer is limited to the plea of the third party against the assured in case the assured incurs the loss resulted from the third party's action and also the insurer pays the insurance money correspond to the loss, and thereby the assured has entitled to the right of subrogation against the third party.

Furtherly, in article 760 of civil law, it requires 'general requisites' and 'common exemption exceeding over common portion' in respect of the mutual recovery among common illegal actors of common illegal act.

From the view point of liability insurer's, the recovery range can be changed depending on which party pays back the joint liabilities against the third party and so, it is obviously disputable that the liability insurer's recovery range can be changed depending on the ability of repayment of both vessels' owners, resulting from the collision accident at the sea.

In case of occurrence of insurance accident, the insurer covers the insurance payment to the assured only and extinctive prescription of payment obligation is 2 years.

Before amendment of Rule 2 in article 724 on commercial law, according to this principle to liability insurance the insurance payment could be claimed not by injured party but by the assured only and if the claim prescription became extinct, the assured had to take the liability for the injured party by himself.

That is, the assured had the direct liability for indemnify and the insurer merely indirect liability.

By the amendment of the commercial law, the injured party which was not included in liability insurance contract could demand the indemnity directly to the insurer by this stipulation and therefore the periods of extinctive prescription could be additionally prolonged to the periods by common exemption time as the liability insurer of another common illegal actor took action of recovery after had performed the common exemption.

Under the present commercial law, the responsibility range of liability insurer was more expanded by the direct demand right of injured party and furtherly it was more enlarged by the judicial precedent and it cannot be denied that the protection of injured party has to be considered as an overriding matter not because of legal rightness but because of view point of policy.

However if recovery action protects injured party faithfully and can be taken reasonably, it can be appreciated as the sound continuous practice means of liability insurance.

This study is focused on the recovery realization program by 'lawmaking by special law' and 'subrogation of repayment party' as the countermeasure to the legal principle of recovery right restriction between mutual of common illegal actors, which is recognized by only judicial precedent.