保證保險의 保證性과 保險性에 관한 硏究

Whether the legal nature of guaranty insurance is guaranty or insurance, is one of the most controversial issues in Korea Insurance Law. There is no different view in respect of that the guaranty insurance partakes of the nature both of guaranty and insurance. But there is a wide disagreement over which one of two natures prevails. In my opinion, the nature of insurance has priority in the guaranty insurance. Because the parties of guaranty insurance contract are insurer and insured (debtor), while the parties of guaranty contract are guarantor and creditor. Even though the guaranty insurance substantially has the nature of insurance, it has also partly the nature of guaranty. Therefore, some articles of insurance law cannot be applied to guaranty insurance cases, while the articles of guaranty debt in the Civil Code should be applied to those cases. 2007 amendment draft of Korean Commercial Code (Insurance Law) newly stipulated the articles of guaranty insurance in the Korean Commercial Code reflecting the nature both of guaranty and insurance in the guaranty insurance.