건설공제조합의 보증에서 공동보증인 상호간의 구상권

Little theoretical discussion has been made until now on legal characteristics of a guarantee by Construction Guarantee, unlike those of guarantee insurance. In fact, the academia is divided between those who view Construction Guarantee’s guarantee as a guarantee contract under civil law and others who view it as an insurance contract for other people. Judicial precedents had also been divided between cases where Construction Guarantee’s guarantee was considered a guarantee contract under civil law and others where it was regarded as an insurance contract for other people. Recently, however, related precedents are mostly recognizing Construction Guarantee’s guarantee as an insurance contract for others. This paper, in this regard, reviews such legal characteristics of a guarantee by Construction Guarantee. Previously, judicial precedents had ruled that with Construction Guarantee’sguarantee, as a mutual insurance operated for the mutual benefit of its members, being similar to guarantee insurance, Construction Guarantee and the guarantor under the main contract could not be viewed as being in the joint guarantor relationship. The precedent in discussion, however, has overturned such previous precedents in its en banc court decision by ruling that Construction Guarantee and the guarantor under the main contract are in the relationship of being joint guarantors to the obligee against the obligor’s obligation performance. This paper examines whether such a decision and the grounds the precedent in discussion has based its decision on are valid or not. Although Construction Guarantee’s guarantee has the same characteristicsof mutual insurance or insurance for others, its purpose and functions are completely identical with a guarantee under civil law, and therefore, it is reasonable to recognize indemnity rights between Construction Guarantee and the guarantor under the main contract. In addition, a comparative analysis of cases recognizing rights to indemnity and subrogation in several parties-concerned oblige-obligor relationshipwith others that don’t also finds it right to recognize their mutual rights to indemnityfor a fair loss sharing. In conclusion, the decision and the grounds the precedent in discussion has based its decision on are believed to be valid.