마약 투여 후 상해사고에서 보험자의 책임에 관한 고찰- 서울고등법원 2018. 12. 5. 선고 2018나2027704 판결을 중심으로 -

Abstract

The Supreme Court ruling has been issued with limited invalidation regarding the exception clause of the drinking and unlicensed driving. Since then, the reasons of exemption of the insurer's were deleted sequentially through the revision of terms of the insurance contract in 2010, such as "the exception clause of drinking or unlicensed driving”, "the exception clause of drug addiction”, and "the exception clause of criminal or violent acts under criminal law”. This has resulted in a situation in which the free decision-making of the insurer who can refuse to take over the insurance for highly risky behavior is fundamentally blocked. As a result, the scope of liability of insurers has been excessively extended, increasing the possibility of insurance payments. This has caused an excessive increase in insurance premiums, which has bad influence even on good policyholders. Therefore, in this paper, we have looked at ways to improve this unreasonable situation. First, we can think of applying a exemption of gross negligence to accident insurance. However, this is difficult to apply immediately, considering the system of the commercial law that considers accident insurance as personal insurance and the scope of the exemption of gross negligence that are applicable only to non-fixed accident insurance. If so, the most effective and practical way is to limit the liability of the insurer within a certain range by stipulating exception clause of the insurer in terms of the insurance contract of accident insurance. As a result, we looked at whether drug use, which has recently become a major social problem, needs to be stipulated as a exception clause based on the domestic Supreme Court ruling and the existence of the exception clause of Germany and Japan. In addition, drugs can cause self-harm and other harm due to side effects such as hallucinations or auditory hallucinations, thereby increasing the possibility of insurance accidents. Also, if the illegal drug use continues due to its addictive nature, insurance accidents may occur repeatedly. Moreover, since illegal drug use is strictly punished by the criminal law and other relevant laws and regulations, the “illegal drug use” must be stipulated as the exception clause of the insurer in terms of the insurance contract of accident insurance. And because this exception clause is illegal acts, it should be distinguished as "exclusion” rather than as "exception”. As such, “illegal drug use” should be stipulated in terms of the insurance contract of accident insurance as a exception clause of the insurer. However, since the exception clause of the insurer are not limited to drug-related activities, additional reviews for other exception clause are required. And after the exception clauses of the insurer are determined, it is necessary to consider a plan to systematically separate and manage the exception clauses by dividing them into “exclusion” or “exception”.