임원배상책임보험에서 Claim의 의미와 약관설명의무- 대법원 2019.1.17.선고, 2016다27720판결을 중심으로 -

Abstract

This paper tries to study Supreme Court case related to the Coverage of the Directors' and Officers' Liability Insurance(D&O insurance) and duty to explain ‘important contents’ on the policy. It also contains the meaning of the claim and whether a claim or claims include criminal claims or not. According to D&O insurance Policy, the insurer shall pay the loss of each director or officer of the company arising from any claim or claims first made against the directors or officers during the insurance period for their any alleged wrongful act. I think that this claim does not include a criminal claim, and that the insurer is not liable for the defense costs of a criminal claim. The insurer shall be responsible for issuing insurance policy and explaining the important contents of the policy(terms and conditions) when making an insurance contract. In the claim-made policy, Clause of notice of claim, disclaimer, extension of notice period, and clause of payment of defense cost after consent of insurer are ‘important contents’ subject to the obligation to explain the policy(terms and conditions). The insurer is obliged to explain these clauses on the policy(terms and conditions) to the policyholder. However, according to the precedent, it is said that the relevant clause cannot be asserted as the content of the agreement regarding the violation effect of the explanation of the agreement. This not only violates the nature of risk organization, but also results in transferring the insurer's fault to other contractors. Even if the insurer is in breach of the obligation to explain the agreement, the policyholder should, in principle, recognize the validity of the agreement, as long as the policyholder has a comprehensive intention to incorporate it into the contents of the insurance contract. However, if there is a problem, it should be solved by the limited interpretation of the agreement or the means of content control, and the insurer's responsibility will ultimately be solved by the liability for damages.