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보험금청구권과 보험금반환청구권의 소멸시효기간에 관한 연구
이훈종 ( Hun Jong Lee ) 한국법정책학회 2014 법과 정책연구 Vol.14 No.1
대법원은 무보험자동차에 의한 상해담보특약에 의하여 보험금청구권을 행사하는 경우 2년의 소멸시효기간이 적용된다고 판결하였다. 상법에 의하여 피해자가 보험회사에게 직접적으로 청구권을 행사하는 경우 대법원은 엇갈린 입장을 보이고 있지만, 많은 대법원판결의 법리에 따르면 3년의 소멸시효가 적용된다. 대법원은 보험회사가 보증보험계약의 무효를 이유로 부당이득반환청구권을 행사하는 경우 5년의 소멸시효기간이 적용된다고 판결하였다. 그러나 자동차손해배상보장사업을 위탁 받은 보험사업자가 부당이득반환청구권을 행사하는 경우 10년의 소멸시효기간이 적용된다고 판결하였다. 본 논문에서는 대법원처럼 소멸시효기간을 정하는 것이 타당한가에 대하여 검토하고 있다. 무보험자동차에 의한 상해담보특약에 의하여 보험금청구권을 행사하는 경우와 상법에 의하여 피해자가 보험회사에게 직접적으로 청구권을 행사하는 경우 공통점과 차이점이 있다. 마찬가지로 보험회사가 보증보험계약의 무효를 이유로 부당이득반환청구권을 행사하는 경우와 자동차손해배상보장사업을 위탁 받은 보험사업자가 부당이득반환청구권을 행사하는 경우 역시 차이점과 공통점이 있다. 사정이 다르다는 점을 강조한다면 소멸시효기간을 각각 다르게 판단하고 있는 대법원판결이 타당하다. 그러나 앞에서 살펴본 모든 사건들에서는 보험회사가 우연한 사고의 발생을 이유로 금전을 지급한다는 공통점이 있다. 본 논문은 이러한 시각에서 보험금청구권과 보험금반환청구권의 소멸시효기간에 관한 법률문제를 검토하고 있다. The Korean Supreme Court has ruled that the period of extinctive prescription is two years when the right to claim insurance benefits is exercised according to an uninsured motorist insurance. Although the Supreme Court is showing mixed views on cases when the victim, in accordance with the Commercial Law, exercises his right to claim directly against the insurance company, according to the legal principle of many the Supreme Court rulings, the prescription period is three years. The Supreme Court has ruled that an prescription period is five years when the insurance company exercises its right to claim the return of wrongful gains on the grounds that the surety insurance contract is invalid. However, when an insurer who has been commissioned with the guarantee of automobile compensation business exercises the right to claim the return of wrongful gains, the Supreme Court has ruled that the prescription period is ten years. Thus, the Supreme Court has ruled in various ways on the prescription period. In this paper, we discuss if it is reasonable to determine the starting point and the prescription period in a complex way. There are common features, as well as differences, between the case where the right to claim insurance benefits is exercised according to the uninsured motorist insurance and the case where the victim exercises the right to claim directly against the insurance company. Similarly, there are also common features and differences between the case where the insurance company exercises the right to claim the return of wrongful gains on the grounds that the surety insurance contract is invalid and the case where the insurer who is commissioned with the guarantee of automobile compensation business exercises the right to claim the return of wrongful gains. The rulings of the Supreme Court are reasonable if the emphasis is placed on the fact that circumstances are different. But all previously discussed cases have in common that insurance companies make payments due to accidents. Considering that they have something in common, it is more reasonable to determine the prescription period in a simple manner than to complicate the matter by distinguishing between them. Simplifying the right to claim insurance benefits and the prescription period of the right to claim the return of insurance benefits solves the legal problem in a simple and clear way.
표현대리인, 표현대표이사 및 권한을 남용한 대표이사를 통하여 어음을 취득한 상대방과 제삼취득자의 보호요건에 관한 연구
이훈종(Lee, Hun-Jong) 한양법학회 2014 漢陽法學 Vol.25 No.1
In this paper, we introduce Supreme Court rulings and theory on the requisite for protection of the other party who has acquired promissory notes through an apparent agent or an apparent representative director, or directly through a representative director who abused his authority, and review its validity. The Supreme Court of Korea suggests different legal principles regarding the requisite for protection of the other party who has acquired promissory notes through a representative director who abused his authority. The requisite for protection of the other party who has acquired promissory notes through a representative director who abused his authority is divided into the following: a Supreme Court ruling which says that the other party is protected if he had no malice (malice = prior knowledge), a ruling which says that he is protected if there was no gross negligence on his part, and a ruling which says that he is protected if there was no fault on his part. According to the Supreme Court ruling, an inequitable result might occur in the following cases. When the legal principle of apparent authority is applied, there are cases where the third party purchaser cannot be protected even if he exercises due diligence, but when the legal principle of cutting off of personal defense is applied, the third party purchaser can be protected even if he does not exercise due diligence. There is a need to consistently organize the legal principles proposed chaotically by numerous cases on the requisite for protection of the other party and the third party purchaser who have acquired promissory notes directly through an apparent agent, an apparent representative director, or a representative director who abused his authority. If there is gross negligence on the part of the person who has acquired the promissory notes, it is reasonable to not hold the debtor accountable for the promissory notes, because it is not necessary to protect a person who trades promissory notes without exercising any due diligence at all.
이훈종(Lee Hun-Jong) 성균관대학교 법학연구소 2004 성균관법학 Vol.16 No.2
One of the most interesting legal issues raised by the upcoming of the Internet is the conflict between trademarks and domain names The Supreme Court of Korea, in association with the interpretation of article 2 of the Unfair Competition Prevention and Trade Secret Protection Act, made two decisions about' an act damaging the identity of mark or the fame of another person'. In the Viagra case, a legal issue is whether an action of defendants is the tarnishment of widely recognized trademark. The Supreme Court judged that plaintiffs were winners in the case about domain names. A conclusion is reasonable. But the way to reach the conclusion is complex. In the Rolls-royce case, a legal problem is whether an action of selling domain names is the commercial uses of domain names. According to the Supreme Court, as the action is not the commercial uses of them, a defendant was a winner m the case. But I question that the every action of selling them is not the commercial uses. The Unfair Competition Prevention and Trade Secret Protection Act was amended in Jan. 20, 2004, and the act entered into force six months after the date of its promulgation. According to the amended act, the action of selling them can be the commercial uses. With this point of view, there is a need to study the case.