타인의 생명보험계약의 문제점 해결과 입법적 과제

Abstract

In essence, insurance on the life of another is a contract under which the insurer promises to pay proceeds upon the death of the person whose life is insured. Generally, the person who takes out life insurance on her own life or another person’s life can designate any beneficiary they choose, for example, spouses, children, a relative, etc. The contracting parties in a life insurance are not a insured and beneficiary but a insurer and policyholder. Insurance on the life of another has the risk of the unlawful activity that the insured is killed. To remove this risk, there are three type of legislation - requirement of the insurable interest, the relative or consent of the beneficiary. The Korean Commercial Code §731(1) stipulate that, before the insurance consent, the written consent of beneficiary is required. But, actually, insurance on the life of another is signed between the insurer and policyholder before the insurance contract without obtaining the written consent of beneficiary. Absent that consent, the Supreme Court delivered judgement that contract is invalid. Also, the Supreme Court wouldn’t permit ratification, after making the insurance contract, as consent of the insured. That position of Supreme Court is too rigor to policyholder and the beneficiary, so, I think, need a adjustment of conflicting interest between insurer and beneficiary. In conclusion, I suggest that after the insurance contract, in inter- pretation, the written consent of beneficiary is valid, and should permit ratification. Therefore, divorce between the insured and beneficiary does not automatically terminate the right of the beneficiary. But, I think, there are special reason like a divorce, beneficiary has right to claim withdrawal of consent to the policyholder.