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The Garnisher"s Voluntary Rescission of Insurance Contract for Surrender Value

  When a insurance contract has been terminated for the future in accordance with the provisions of Articles 649, 650, 651 and 652 to 655, the insurer shall pay to the policyholder the surrender value(The Commercial Code §736). The surrender value of a life insurance contract has been defined as the cash value of a policy that has been surrendered to the insurer by a person having the contractual right to surrender it. One of the most frequently recurring questions in connection with the surrender value is that who has the right to surrender. According to The Commercial Code §736 that reflect a general rule, the person having this right is the policy owner, but this right can be transfer to the creditor who cancel the insurance contract after attach the insured" right against to the surrender value. An creditor may, in order to protect his claim, exercise the rights belonging to the debtor(The Civil Code §404(1)). But although the right to cancel the insurance contract is not a personal exclusive rights, to exercise the right of subrogation is not easy because §404(1) demand to fulfil the condition that the debtor in insolvency situation. The author agree with the court that in compulsory execution proceedings, the creditor" right to cancel the debtor"s insurance contract is allowed because if not the attachment is invalid. The Creditor of the insured has three ways to realize his claim, those are subrogation(The Civil Code §404(1), garnishee order(The Code of Civil Enforcement §223), assignment order(The Code of Civil Enforcement §231) or collection order(The Code of Civil Enforcement §232) on the debtor"s surrender value claim against to insurer. This result has arisen occasionally question with respect to the stability of the beneficiaries" expectation against the sum of insured. The author concluded that the new legislation was needed and those exception statute  will be contribute to the harmonization of the interest between the creditorsand beneficiaries.