보험에 관한 권리의 소멸시효기간과 기산점에 관한 연구

This paper explains the precedents and theories on the period and starting point of insurance-related rights, such as the right to claim insurance money, the right to return unfair gains on insurance money, the right to indemnify under the insurer's subrogation, and the right to directly indemnify the insurer, and presents legislative theories after reviewing the validity. The Supreme Court's en banc decision applies commercial prescription to quickly terminate legal relations when exercising the right to claim the return of unfair gains of insurance payments paid based on invalid insurance contracts. In the case of exercising the right to claim the return of unfair gains on a person who legitimately acquired the insurance money, a short-term prescription is applied to protect transaction safety, but in the case of exercising the right to claim the return of unfair gains on a person who illegally acquired the insurance money, it is reasonable to apply a long-term prescription to regulate the possession of unfair gains. The Supreme Court applies the commercial prescription when one of the joint offenders exercises the right to indemnify the other insurer directly, but applies the civil prescription when exercising the right to indemnify the other insurer according to the insurer's subrogation. Since both rights have the same economic function of post-settlement after insurance payments, and considering the reason for the existence of a prescription system to secure legal stability, it is desirable to unify the prescription period. The Supreme Court ruled that if it is difficult to objectively know whether an insurance accident has occurred, the extinctive prescription will begin from the time the claimant knows or can know that the insurance accident has occurred. However, since the court judges the time when the objective recognition is possible after the accident occurs, there is a risk of deriving different starting points from the same facts if the lower and higher judgments are different. The Supreme Court ruled that the extinctive prescription of the insurer's right to claim the return of unfair gains on the insurance money against the pledgee begins from the time the right arises. If the return obligation properly acquires the insurance money, it is reasonable to apply a short-term prescription based on the date of occurrence of the right, as it is necessary to determine the legal relationship early. Since the right holder who knows that the return obligation has illegally acquired the insurance money can quickly exercise the right, it is reasonable to apply a short-term prescription from the date of knowing that the right can be exercised. However, if the right holder is not aware of it, it is necessary to apply a long-term prescription from the date of occurrence of the right to prevent the legitimate right holder's rights from being extinguished due to the lapse of a short period of time. In this paper, the following legislative theory is presented to clarify the period and starting point of extinctive prescription while promoting equity between the right holder and the obligor. Short-term prescription is applied to the right to insurance if the date of the right holder's knowledge is the starting point, but long-term prescription is applied if the date of the right's occurrence is the starting point. However, if the person liable for return duly acquires the insurance money, the date on which the right to claim return occurs is the starting point, and short-term prescription is applied.