No surety insurance payment without the execution title the policy requires

1. 01Question

   Where the policyholder who applied for attachment obtained a discharge in bankruptcy, may the insured claim the surety insurance payment from the insurer without the execution title the policy requires, relying on Article 726-5 of the Commercial Act, and may the insured still obtain a final judgment confirming a claim for a specific sum against that policyholder?

2. 02Holding

   No. A surety insurance contract is not a liability insurance contract, so the third party's direct claim in Article 724(2) of the Commercial Act does not apply to it directly or by analogy, and the insured acquires no direct claim against the insurer without the execution title the policy requires. Article 726-5 of the Commercial Act, on the insurer's liability, does not make the insurer pay the insured without that title, and that holds even where the action for performance against the policyholder was dismissed for want of protective interest after the policyholder's discharge in bankruptcy. The insured who still has a right to claim the surety payment from the insurer may nevertheless obtain a final judgment, or an instrument with the same effect, confirming a claim against the policyholder for a specific sum, because the debtor's discharge does not affect the bankruptcy creditor's rights against a surety or another joint obligor under Article 567 of the Debtor Rehabilitation and Bankruptcy Act.

   Summary of the holding, verbatim

   피보험자가 보증보험계약의 보험약관에서 정한 집행권원을 갖추지 못한 이상, 보증보험자의 책임에 관한 상법 제726조의5의 규정을 근거로 보험자가 피보험자에게 보증보험계약상 보험금을 지급할 책임이 있다고 볼 수도 없다.

   Unofficial English translation

   Insofar as the insured has not obtained the enforcement title provided in the standard policy provisions of the guarantee insurance contract, it cannot be regarded that the insurer is obligated to pay the insurance money under the guarantee insurance contract to the insured on the basis of Article 726-5 of the Commercial Act concerning the liability of the guarantee insurer.

3. 03Disposition

   Dismissed Stated in the decision

   상고를 모두 기각한다. 상고비용은 원고들이 부담한다.

   Unofficial English translation

   All appeals are dismissed. The costs of the appeals shall be borne by the plaintiffs.

4. 04Form of the test

   Elements stated Stated in the decision

   피보험자가 보증보험계약의 보험약관에서 정한 집행권원을 갖추지 못한 이상, 보증보험자의 책임에 관한 상법 제726조의5의 규정을 근거로 보험자가 피보험자에게 보증보험계약상 보험금을 지급할 책임이 있다고 볼 수도 없다.

   Unofficial English translation

   Insofar as the insured has not obtained the enforcement title provided in the standard policy provisions of the guarantee insurance contract, it cannot be regarded that the insurer is obligated to pay the insurance money under the guarantee insurance contract to the insured on the basis of Article 726-5 of the Commercial Act concerning the liability of the guarantee insurer.

5. 05Factors

   • 기본 성격, 피보험자, 담보되는 손해의 종류와 책임의 성질, 보험의 주된 목적 등이 달라
   • 그 보상은 보험약관이 정하는 바에 따라 그 보험계약금액의 범위 내에서 보상하는 것이므로
   • 피보험자가 보험약관이 정한 집행권원 없이도 보험자에 대하여 직접청구권을 취득한다고 볼 수 없다.
   • 이행청구를 할 수 없는 특별한 사정이 있는 경우에까지 확인의 이익이 없다고 단정할 것은 아니다.
   • 채무자의 면책은 파산채권자가 채무자의 보증인 등 채무자와 더불어 채무를 부담하는 자에 대하여 갖는 권리에 영향을 미치지 아니하므로(채무자 회생 및 파산에 관한 법률 제567조)

   Unofficial English translation

   • as their basic nature, the insured, the type of loss covered and the nature of the liability, and the principal purpose of the insurance differ,

   • as the indemnity is paid, in accordance with what the standard policy provisions provide, within the limit of the amount of that insurance contract,

   • the insured cannot be regarded as acquiring a direct claim against the insurer even without the enforcement title provided in the standard policy provisions.

   • it should not be categorically stated that there is no interest in confirmation even where there are special circumstances under which a claim for performance cannot be made.

   • as the discharge of the debtor does not affect the rights of a bankruptcy claimant against the guarantor of the debtor or any other person who is liable for the obligation jointly with the debtor (Article 567 of the Debtor Rehabilitation and Bankruptcy Act)

6. 06Relation to precedent

   Follows earlier decisions Stated in the decision

   대법원 1999. 4. 9. 선고 98다19011 판결(공1999상, 831)

   Unofficial English translation

   Supreme Court Decision 98Da19011 decided April 9, 1999 (Gong 1999 Sang, 831)

   Decisions referred to

   [1] 대법원 1999. 4. 9. 선고 98다19011 판결(공1999상, 831) / [2] 대법원 2012. 1. 12. 선고 2011다85178 판결

7. 07Burden of proof

   Not addressed Not in the decision

8. 08Open question and revisit condition

   If the surety insurance terms did not designate an execution title, or designated an instrument of another kind, would Article 726-5 of the Commercial Act require the insurer to pay the insured?

   A later decision treating an instrument of another kind as an execution title of equal effect under standard surety insurance terms would call for this entry to be read again. So would a record showing that the insured had already obtained a final judgment confirming a claim of a specific amount against the policyholder.

Read 2026-10-24 · Cross-read 2026-10-24. All quotes matched against the official text. The Chinese-character placeholders the court used for anonymised parties are given in their Korean readings, and parenthetical Chinese-character glosses are omitted.

Every entry is published only after all quotes have been matched character by character against the official text, and audited by an independent second reading from a different model family across all eight axes. Both agreed axes and text-grounded interpretive divergences are recorded openly. The ledger is a research record, not an assessment of the court or advice on any matter.