타인의 생명보험에서의 서면동의에 관한 입법적 고찰 - 동의의 시기와 전자서명을 중심으로 -

Abstract

The subsection 1 of the section 731 of the Commercial Law (hereinafter “the section”) provides that an insured (hereinafter “the insured”) of a life insurance contract for other insured person (hereinafter “the contract”) must sign a written agreement when the contract is signed up. This article aims to find legislative resolutions concerning an agreement period and an electronic sign among several problems which arise from the section. At first, one of many legislative ways to solve problems of the section adds that the insured ratifies the contract without a written agreement after that the contract was signed up, to the section. In the aspect of legal effect, the contract without a written agreement of the insured does not become valid by the section. The rule of law in Korea, especially in the Civil Act, does not accept the ratification for the contract which breached an Act which is strictly enforced, and became invalid. Therefore, it is not good way that the insured ratifies the contract without a written agreement after that the contract was signed up. Second, it is legislatively possible to adjust the agreement period of the section before that the insured event occurs. It can help a policyholder claim a refund on termination according to the contract but an insurer overburdens legal position which is unstable and very long time. The insurer’s legal burden does not match with the ideology of the Commercial Act that a commercial transaction should be confirmed in short time in order to protect the stability of commercial transaction. Hence, there is no need to amend the section and it is suitable that the section provides that the contract should have a written sign of the insured when the contract is signed up. The problems occurred from the section would be solved by that a policyholder claims a tort liability to an insurer who committed torts against the Insurance Business Act and the Civil Act. Third, an electronic sign may be introduced into the section according to the ITC era. This article reviewed the introduction of an electronic sign with the Insurance Business Act and presidential order, the Electronic Paper and Electronic Transaction Act, the Electronic Sign Act, and the Notary Act. As the result, an electronic certification of a notary for the insured’s electronic sign under the Notary Act is an ideal way to resolve the problems of the section. However, an electronic certification of a notary under the Notary Act has a defect that a notary should meet the insured by face-in-face in off-line. On the other hand, a public certified sign is vulnerable to cyber security and it is excessively presumed as a sincere will of an original owner by the subsection 2 of the section 3 of the Electronic Sign Act. Hence, this article recommends the amendment of the Insurance Business Act or the guideline of the Financial Services Commission in order to presume a sincere will of an original owner, even by a court, if there is an electronic sign of the insured who is recognized by a fingerprint, a iris, or a videophone.