보험금청구권이 없는 피보험자에 대한 대위권에 관한 연구 = A Study on Subrogation Against Insured Who does not have the Right to File a Claim

다국어 초록 (Multilingual Abstract)

In determining whether the insurance company is liable for the indemnity of insured`s loss under automobile comprehensive liability insurance, the provisions of policy wording are applied to each individual insured. Therefore, in case that there are more than two insured who are obligated to pay the liability claim regarding one accident, two types of insured could exist simultaneously; one is the insured who has the right to file a claim and the other is the insured who does not have the right to file a claim. In this case, a dispute could arise as to whether the insurance company which paid the claim filed by insured who has the right to file a claim can conduct the right of subrogation against the insured who does not have the right to file a claim. In the meantime, Supreme Court is of the opinion that the insurer can not exercise the right of subrogation against person who caused an insurance accident in case that the person who caused the accident falls into the insured in the insurance contract context , not the 3rd party person stipulated in Commercial Law, citing that the subrogation by insurer stipulated in clause #682 of Commercial Law is the system that the insurance company obtains the right to file claims that insured or policyholder have in case that the insurance company pays the losses caused by the 3rd party, not policyholder or insured. However, I think the Supreme Court deliveres the wrong interpretation of the policy wording by judging the context centered on the 3rd party even if it acknowledges the employer liability by lessee. The insured is the person who has an insurable interest(the right to file a claim) in the non-life insurance and, therefore, in this case, the insurance company does not have any reasons to protect lessee because lessee is deprived of the right to file a claim. The aforementioned lessee is construed as 3rd party because he or she is substantially not an insured, even if the person is externally the insured. In the non-life theory, there does not exist the contradictory relationship such as insured without having the right to file a claim or non-insured with the right to file a claim. In other words, the right to file a claim is limited to the insured only, and the person without the right to file a claim is not the insured. If he or she is the insured in the external context, the person is not entitled to enjoying the insurable interest forever. Even if he or she is the insured in the external context, the person will no longer retain the insured status once the insurable interest does not exist, thus making the faithfully interpreted wording applied to individual insured