보험상품의 판단기준에 대한 고찰 - 대법원 2014. 5. 29. 선고 2013도10457 판결을 중심으로 -

Abstract

Anyone who runs “insurance business” as defined under the Insurance Business Act (“Act”) without obtaining a license from the Financial Services Commission shall be subject to criminal penalties according to the Act (Article 4(1) and Article 200(1)). Accordingly, a clear definition of the “insurance business” is required as it constitutes a factor of requisite elements of a crime. The term "insurance business" means the business of underwriting insurance, receiving premiums, paying insurance proceeds, etc. which arise in selling insurance products, and refers to a life insurance business, a non-life insurance business and a Type 3 insurance business (Article 2.(2) of the Act). Therefore, to grasp the concept of “insurance business”, it is necessary to first understand what “insurance product” is. The Act defines an “insurance product” as a “contract stipulating the payment of money and other benefits to the insured for the occurrence of a contingency for the purpose of guaranteeing any risk, in exchange for consideration” and identifies a life insurance product, a non-life insurance product and a Type 3 insurance product as insurance products (Article 2(1)). Further, the Supreme Court has provided a guideline regarding the concept of “insurance product” in its decision dated May 29, 2014, Case No. 2013do10457 (“Decision”). However, the Decision can be criticized for failing to provide clear standards for determining what constitutes an “insurance business” and “insurance product” or specific analysis for application of the standards for determining whether a specific activity or transaction constitutes an “insurance business”. This paper provides analysis of the Decision and discusses the significance thereof and issues that can be raised against the Decision.