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보험약관대출의 법적 성격에 관한 연구 -대법원 2007. 9. 28. 선고 2005다15598 판결을 중심으로- : A Study on the Legal Nature of Policy Loan -Focused on the Supreme Court Case of 2007. 9. 28. 2005da15598-
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- Authors
- Issue Date
- 2008
- Publisher
- 서울대학교 법학연구소
- Citation
- 법학, Vol.49 No.4, pp. 574-603
- Keywords
- 약관대출 ; 해약환급금 ; 견련관계 ; 상환의무 ; mutual set-off ; surrender value ; close relationship ; money Loan
- Abstract
- As policy loan is based on the policy itself not but on the statutory law, its
legal nature depends on cases and theories. The Korean Supreme Court recently
decided a case (SC 2005da15598) holding its legal nature as a prepayment of
surrender value, which reversed its previous view of a money loan contract. The
dominant view of academics was the same as the case before the SC 2005da1
5598, but after this new decision the argument for money loan became strong.
The judges of the Supreme Court discussed and elaborated the legal nature of
policy loan thoroughly, being divided into the majority opinion, the dissenting
opinion, and the supplementary opinion. However, the current cases and theories
could be criticised in that they determine the legal nature in a transcendent and
monolithic way with the result that the law is inconsistent with the practice. It
needs to be pointed out that policy loan is just a contract between the insurer
and the policyholder without being subject to any statutory intervention.
Therefore its legal nature should be decided in an empirical and individual way
by reference to the contents and aims of a policy loan contract, the process
leading to its conclusion, and the parties intents thereon so on. To decide the
legal nature in a transcendent and monolithic way seems to disregard the real
practice where policy loans featuring money loan or prepayment of surrender
value coexist. It is suggested that the former should be regarded as a money
loan contract while the latter as a prepayment of surrender value. It is
undesirable that SC 2005da15598 held the legal nature of a policy loan featuring
money loan as a prepayment of surrender value. If a specific policy loan is held...
- ISSN
- 1598-222X
- Language
- Korean
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