보험자의 청구권대위와 제3자에 대한 손해배상청구권의 관계- 대법원 2015. 1. 22. 선고 2014다46211 전원합의체판결을 중심으로 -

From the viewpoint that a contract of property insurance is an agreement that an insurer promises to compensate the insured for property damage caused by the particular type of risk insured against upon payment of insurance premiums by the insured, it is a contract of indemnity. Thus, insurance covers the actual loss incurred to the assured, and the assured can not benefit from the compensation more than insurable interest or actual losses in any case. By the way, in case of partial insurance where the assured was not fully recovered due to the lack of a third party's fund or comparative negligence, it is not always easy to decide whether an insurer who has paid under the policy is entitled to any amount of money against the third party. The general principle is that an assured, who is paid out on his policy and then proceed to recover from a third party, is entitled to retain the recovery until he is fully indemnified against his loss. This principle is correct in so far as it is applied to cases where the assured's interest was fully covered. It does not take account, however, of cases of partial insurance where problems can be created by the presumption that the parties intend that the assured is to be his own insurer for the amount which is uninsured. If an insurer is entitled to make claims against third parties to recover what he has paid to the assured without any exemptions, there can be cases where the insurer may reimburse for the loss from the third party even if the assured was not fully paid out by the insurer. It is no doubt unjustice, however, in terms of the nature of the property insurance that the insurer indemnifies the assured until he is fully compensated for the actual loss. Additionally the general principle is that the insurer ought to pay out the assured without paying attention to the assured's rights against third parties. Since the premium is the consideration required of the assured in return for which the insurer undertakes his obligations under the contract of insurance, it is absolutely true that the assured is entitle to keep whatever he recovers from third parties until he has received a full indemnity and the insurer can not undermine the assured's right against third parties.