責任保險에 있어서 直接請求權의 消滅時效期間에 대한 適用法條 - 대법원 2005. 10. 7, 선고 2003다6774 판결의 검토 -

If the insured is liable for the loss of a third person caused by an insured event during the cover period, the insurer of a contract of liability insurance shall be bound to indemnify therefor. The Korean Commercial Code provides that a injured third party in the liability insurance contract has a direct remedy right to the insurer, even though he is not a party to the contract of liability insurance: A third person may directly demand the insurer to indemnify for any loss caused by accident attributable to the insured, within the limit of the insured amount(Commercial Code §724 (2)). This paper analyses and discusses which provision(Civil Code §766 or Commercial Code §662) shall apply to the extinctive prescription for the third party's direct claim against the insurer in liability insurance. Concerning this problem, the Korean Supreme Court Decision(Decision No. 2003da6774) applies the Civil Act §766(1) to this matter: The right to claim for damages resulting from an unlawful act shall lapse by prescription if not exercised within three years commencing from the date on which the injured party or his agent by law becomes aware of such damage and of the identity of the person who caused it. Author criticizes this Decision, and suggests that the applicable provision to the above matter should be Commercial Act §662, providing that two years' absence * Professor of Law, Inha University 140 法學硏究 第11 輯 第2 號 of the exercise of the rights to demand the payment of the insured amount shall make that right extinguished; and a new legislation is needed in order to minimize the uncertainty about the application of laws.