손해보험의 손해방지비용과 방어비용에 대한 검토 (대법원 2006. 6. 30. 선고 2005다21531판결을 중심으로)

The Insurer under a liability insurance policy, in addition to assuming a duty to indemnify the insured in the event the insured incurs a liability to a third party, assumes a duty of defending the insured in a lawsuit brought by a third party alleging liability within the policy's coverage. In this case, the plaintiff sued and claimed labor charges and the defending charges of the attorney's fee against the defendant, insurance company. I think there are a few points at issue in this case. At first, the costs spent for employing the lawyer by the insured in order to defend the third party's suit against the insured in the liability insurance are not the direct economical damages covered by the languages of the policy itself. In Korea, anyone is not obliged to appoint the attorney in filing a suit, therefore, the fees of electing the lawyer are not the essential damages of the insured to be compensated by the insurer. Secondly, the insured is entitled to be compensated for the defending charges to defend the claim to be brought by the third party in the liability insurance (Commercial Act § 720 ①) and imposed to sue and labour in order to avert and minimize the loss caused by the accident(Commercial Act § 680 ①). The insured's duty to mitigate the damages in property insurance is based on the ground that insurance contract is a kind of venturing contract and mitigating the loss is good for the social benefit. When the charges are necessary or useful to avert or minimize the loss, the insurer must pay the charges to the insured, even if the total sum of the defending costs and the indemnity is in excess of the sum insured. The defensive charges spent by the insured as a judicial costs or not, if those are useful for defending the third party's claim in the liability insurance, should be compensated to the insured by the insurer. In this case, the attorney's costs are the defending charges. The damages suits brought by the victims of the securities dealing without the consent of the owners are the direct claims against the insured, therefore, the insured should pay the useful costs in order to defend the right of the insurer. Finally, the policy provision of this guarantee insurance is stipulated as follows : mitigating fees spent by the insured without the approval of the insurer might be restricted within the sum insured or not be compensated. This policy provision are not invalid. That is why liability insurance policy is invalid by the ground of breach of Commercial Act § 663 is not applied to the enterprise insurance like reinsurance or guarantee insurance of a certificate of good character.