보험약관대출의 법적 성격에 관한 연구 -대법원 2007. 9. 28. 선고 2005다15598 판결을 중심으로-

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...