타인을 위한 보험에서 보험계약자가 보험자대위의 상대방이 되는지 여부 - 상법 제639조 제2항 단서 해석론을 포함하여

In entering into an insurance agreement for third party beneficiary, the policyholder may well have had a specific intention to confer a benefit to another, but in some cases may have done so without being fully aware of the features of such an agreement. Thus, a clear understanding of the legal nature of a third party beneficiary insurance is in order. Unlike the majority theory and precedents viewing a third party beneficiary insurance as a third party beneficiary contract under the Civil Act, this article posits that it is reasonable to view it rather as a special contractual arrangement under the Commercial Act. On this premise, the interpretation of a third party beneficiary insurance should be centered on Article 639 of the Commercial Act. In the context of a third party beneficiary non-life insurance, only the insured party holds an insurable interest against the insured coverage, and thus, shall necessarily be entitled to the benefit of the contract. As such, the policyholder basically has no claim for insurance money. However, when the conditions provided under Article 639(2) proviso of the Commercial Act are met, namely, in the event the policyholder compensated the insured party for damages from a peril insured against, the policyholder may claim against the insurer for insurance money to the extent it does not prejudice the rights of the third party beneficiary. The question is whether the insurer is entitled to subrogate the policyholder. As the policyholder of a third party beneficiary insurance is not the subject of insurable interest, in principle the policyholder is included in the scope of third parties subject to insurer subrogation. However, it would be a different story if, in view of the nature of a given agreement, the policyholder entered into a third party beneficiary insurance agreement to avoid his/her liability, i.e., an agreement having the same purpose and nature as a liability insurance. Therefore, in the context of an insurance agreement of this nature, the insured party should be understood to have transferred its insurance claim against the insurer over to the policyholder. Hence, in the event of an insured risk through minor negligence or no fault of the policyholder, the insurer should not be entitled to subrogate the policyholder.