생명보험약관에 기한 보험약관대출의 법적 성격

A ‘policy loan’ is a loan made by an insurance company to a policyholder using the cash value of the life insurance policy as a security. A policyholder has the option to use the cash value of the life insurance policy as a collateral for the policy loan and is able to use the cash value while maintaining the protections provided by the insurance policy. The interest rate is usually specified within the insurance policy tself. In general, the policyholder may elect to pay yearly interest and make payments toward the principal of the loan. Although the policyholder is not required to repay the loan, in the event of failure to pay the required interest, that amount will be subtracted from the cash value of the policy as long as sufficient the cash value remains. Opinions greatly differ on the legal characterization of the policy loans. More specifically, the ‘consumption loans view’ considers a policy loan as a commercial loan that creates the ordinary relation of debtor and creditor, and perceives contract of a policy loan and of an insurance policy as two distinctive contracts. Another view of a policy loan is that of the ‘advanced payment view’, which considers a policy loan as an advanced payment of the cash value of the policy. Under this view, although a policy loan is termed a ‘loan’, it differs from an ordinary commercial loan. It is more accurately an advance, and does not create the ordinary relation of debtor and creditor or impose a personal liability on the insured. Rather, it is merely a deduction from the sum of cash value the insurance company ultimately must pay to the policyholder. Also, contrary to the consumption loans view, this view treats policy loans and insurance policy as constituting one identical contract. A more compromising approach of these two views is that the foregoing mentioned characteristics of consumption loan and advanced payment views are both embedded into the policy loans. After the life insurance policy is surrendered, depending on the position taken in regards to the policy loans, the deduction amount of the policy loan may differ. The consumption loan approach views that the policy loan and the proceeds of the disposition offsets one another. Also, under this approach sometimes set-offs between the policy loan and the proceeds of the disposition may be limited by other regulations. Under the advanced paym판례평석ent view, however, the proceeds of disposition will simply be the remnants of the policy after deducting the policy loan. The compromising view accepts both of these positions by recognizing that the loan and the proceeds can off-set one another by because of the strong correlation between the two. The set-off can occur without additional expression of such intention and without limitation by other regulations. Contrast to positions commonly held by majority of the countries, Korea currently holds the consumption loans view of policy loans as its majority view. In the past, the Supreme Court of Korea rendered decisions that assented to the judgment of the appellate court on consumption loans view. However, by an en banc decision, the Court held that policy loans were eventually advanced payments. The significance of this holding is that it grants legal and economic effect that conforms to the intention of the contracting parties. Though in the past, life insurance policy clauses in Germany used terms such as ‘loans’ or ‘consumption loans’ to refer to policy loans, since the cases and theories repeatedly supported the advanced payment position instead of the consumption loan position, afterwards, the life insurance policy clauses were amended, and the term ‘loans’ were replaced by the term ‘advancements.’ In order to avoid confusion, the author suggests that the term ‘advancement’ be used in life insurance clauses in Korea as well.