해약환급금청구권에 대한 압류와 보험계약자의 채권자에 의한 보험계약의 해지에 관한 고찰

The general view expressed by Korean academia on this issue is that attachment upon the right to refund is available as it has the nature of right to compensation and that the cancellation by a creditor is likewise allowed due to right to recourse. The Supreme Court also articulated that attachment of an insurance contract is allowed and that, in order to seek the right to cancellation refund, such a cancellation is permitted. However, the right to cancellation refund occurs only after the cancellation of the underlying insurance contract. Further, the right to cancel is entirely up to the purchaser of the insurance, unless there has appeared a solid ground for cancellation, such as failure to pay premiums. Therefore, the right to a cancellation refund is a potential right, and it is not a right that is definitely going to be vested in the near future. As for potential rights, the Supreme Court’s position has been that attachment of these rights are possible when the emergence of the actual right is clearly anticipated in the near future. If one considers this issue in light of these holdings, the argument that such rights are attachable does not hold a lot of water. Even assuming that these are attachable rights, the allowance of cancellation by a creditor brings about the unfair result that allows a party who has attached future right to exercise a substantive right, thereby granting him more rights that he has previously held. This result is even more problematic, if one considers the purpose of the enforcement statute that allows the satisfaction of claim only through the attachment of a definite, vested right. Further, insurance contracts exist to allocate risks by organizing a collective risk pool, and there is strong need to protect the beneficiaries especially for insurance contracts for the benefit of third parties. Considering these unique features of insurance contracts, such a result goes against these purposes and features of insurance contracts. On the other hand, the current civil enforcement law attempts to protect the beneficiaries by prohibiting the attachment of the right to cancellation refund. However, such provisions can be interpreted to allow the cancellation of a contract by a creditor. Therefore, revisions to these provisions are needed. The author hopes that revisions to these provisions toward the prohibition of attachment upon the right to cancellation refund and the cancellation by a creditor, thereby resolving the problems in the provisions in the civil enforcement law. Such revisions should take into consideration the special features of insurance contracts.