보증보험자의 구상권과 보험자대위권에 관한 고찰

Guaranty insurance is one of the peculiar kinds of insurance, which has the characteristic of both a property insurance contract and a suretyship contract. It is said that the guaranty insurance partakes of the both of insurance and suretyship. Guaranty insurance is an insurance that promises the debtor to indemnify the damage of the creditor which may arise in regard to the performance of obligation under contracts of sale, employment, works or others and receives from the debtor. The effectiveness of this obligation affects on that of insurer's obligation caused by insurance contract and this characteristic comes from civil law system relating to the suretyship contracts. Guaranty insurance should be distinguished from guarantee by a surety. If any one of a number of co-sureties paid the whole debt, he can be indemnified the proportion which the others are bound to bear. Co-sureties has the contribution in suretyship contract. The whole member's judicial decision of Korea supreme court acknowledged the right to indemnity between an insurer and a surety on the ground that the legal nature of guaranty insurance is more close to a suretyship than an insurance. In the holding, the court accepts the dependence nature of guaranty insurance in that the responsibility for damage is distributed fairly. This is evidenced by the fact not only that the liability of the surety is always secondary to that of principal debtor, while the insurer has an independent obligation to pay a new debt in case of a certain event, but that a surety who has paid the creditor has a right against the debtor in his own name, but after payment an insurer is entitled to be subrogated to the rights of insured. This paper is aiming at researching on the difference between the right of indemnity of and subrogation of the insurer of guaranty insurance as co-sureties.