손해보험계약에서 피보험이익 및 위험과 상법 제644조의 관계

Abstract

As it is generally regarded that the insurable interest, the risk, and the term of insurance policy are essential elements of the insurance contract, an insurance contract lacking of an insurable interest shall be null and void. However, under the Korean Commercial Code (hereafter, KCC), the nature of the insurable interest seems to be not well-established yet, and in the U. K., reformation works on the overall issues of the insurable interest are in progress by the Law Commission. According to the authentic views of the Law Commission, any role of the insurable interest in an insurance contract of indemnity shall be abolished and can be substituted by the principle of indemnity. Meanwhile, the newly revised Gambling Act 2005 allows enforcement of a gambling contract, including an insurance contract. In this sense, any insurance contract which lacks of insurable interest may be enforced by the provisions of the Gambling Act 2005. In spite of taking effect of the Gambling Act 2005, the Marine Insurance Act 1906 (hereafter, MIA) firmly demands an insurable interest as an essence of the indemnity insurance. Additionally, article 11. of the Institute Cargo Clause (hereunder, ICC) expressly stipulate that in order to recover under marine insurance the Assured must have an insurable interest in the subject matter insured at the time of loss, even in case of a retrospective insurance. According to KCC Section 644, an insurance contract of which either the loss already occurred before the contract of insurance was concluded or the risk was completely extinguished shall be null and void, unless all the parties and the Assured were not aware of the loss. The predominant view of the Korean academic society reads the above Section as a basis for the objective occurrence of the loss and the subjective occurrence of the loss. Although, in writer's view, Section 644 of KCC closely relates to both the risk and the insurable interest, the said predominant view fails to deeply interpret it with elements of the indemnity insurance and to provide practical solutions. Therefore, Section 644 of KCC should be reinterpreted from the angle of the elements of the insurance of indemnity contract, the insurable interest, the risk, and the term of insurance policy. In this context, making an insurance of indemnity contract null and void when the partial loss occurred before the contract of insurance was concluded, unless all the parties of the contract were not aware of the loss, would not inconsistent with the parties' intention.