인과관계 없는 고지의무위반과 계약해지가부 － 대법원 2010.7.22. 선고 2010다25353 판결에 대한 평석을 중심으로 －

Abstract

In insurance contract law the duty of disclosure plays very important role. Insurance contract is a contract of utmost good faith. Many of conflicts are arising from the duty of disclosure. Thereby causal relationship takes very significant position. There were discussions, whether the insurer can surrender insurance contract, when the violation of disclosure duty has no relation to cause of insurance accident. The supreme court has, until the new case in 2010 appear, decided that the insurer can not surrender the contract in such a case. But the new supreme court has decisively shown its new attitude, that the insurer can surrender then the insurance contract for the future. This is a right decision. This study concentrates on analysing the new korean supreme court decision about the possibility of contract surrender in case of disclosure duty violation without causal relationship. The author has done comparison study with german legal status about the detailed contents of disclosure duty and causal relationship. The author has tried to pick out some suggestions from comparison with german legal status. In the future german new insurance contract law, their discussions, court decisions can give us very useful suggestions. Nowadays many countries are making effort to get better insurance contract law. The current korean insurance contract law in korean commercial code was effected in 1963. It has many problems. The reform discussion about korean insurance contract law is being done in korean national assembly. By the reform discussion in korea the legislator has decided to adopt one provision about possibility of contract surrender in case of disclosure duty violation without causal relationship. The reform draft of korean commercial code has namely the same contents. But it has not passed the national assembly until now. In short terms, we should agree with the attitude-change of supreme court.