부동산 매매와 피보험이익에 관한 소고

This article deals with legal issues of insurable interests of a vendor and a purchaser in the sale of real estate. Where the purchaser of a real estate has not obtained its legal title from the vendor but has the right to use it and profit from it, legal issues arise as follows : ① whether or not the vendor or the purchaser has insurable interests, ② if so, what their contents and value are, ③ how much insurance money the vendor or the purchaser may claim, and ④ when the vendor and purchaser are respectively insured by different insurers, what the relationship between those insurers is. This article explores those legal issues contained in the Supreme Court case of 2009da43355. The conclusions of this article are follows. Firstly, when the purchaser without the legal title of the real estate did not enter not the vendor’s name but his one as an insured and its owner in the application form in contracting a fire insurance for the real estate, unless circumstances otherwise indicate, the contract should be interpreted as the purchaser as an insured having concluded a fire policy insuring his own insurable interest which he has as a purchaser. Secondly, the purchaser possessing the real estate, even though he has not acquired its legal title, should be interpreted as holding insurable interest equivalent to that of the legal owner, because as least as far as the internal relationship with the vendor is concerned such a purchaser is entitled to its use and profit from it, and because the purchaser bears the economic risk of loss. Finally, when the vendor and the purchaser are respectively insured, each can recover from his own insurer to the extent of actual loss which occurred to him. The vendor’s right of recovery may be limited to the amount for which he has not been paid, while the purchaser’s one to the amount for which he has already paid. Responsibility should be allocated between the vendor's insurer and the purchaser’s insurer according the legal principle of the dual insurance.