냉동창고건물의 잔여공사와 고지의무위반 － 대법원 2012.11.29. 선고 2010다38663, 38670 판결에 대한 평석을 중심으로 －

Abstract

Insurance plays very important role in modern society. It takes strong social character and also character of public interest. In recent days a important case has appeared in regard of the public function of the private insurance. Because of unknown fire a cold storage was burn totally. Almost 40 persons have died or injured because of this incident. The insurer has denied the insurance protection because of the violation of the duty of disclosure. There were extension works in the mentioned cold storage. The key point is wether the insured has violated the duty of disclosure in regard of this extension works. The 1st and 2en instances have denied the violation of the duty disclosure of the insured. But the supreme court has accepted the argument of the insurer that the insured has violated the duty of disclosure on the ground of gross negligence. But this decision is a seriously wrong judgment. The reform of the duty of disclosure is the key point of the german(2007) and japanese(2008) insurance contract law reform. This study concentrates on analysing the supreme court case(2010Da38663, 38670). The author has criticized the supreme court decision. he has also shown the recent reforms of german and japanese law. The author has also tried to pick out some suggestions from german reform as not only 'de lege ferenda' but also as a interpretation way of the existing law, especially in regard of duty of disclosure. We should also understand the duty of disclosure as a passive answer system. The insurance practice has already shown that the duty of disclosure means the duty of passive answer. The supreme court in korea(96Da27971) has already confirmed this point.