보험자 약관설명의무의 대상 여부의 판단기준에대한 고찰 - 대법원 2016.9.23. 선고 2016다221023 판결에 대한 평석을중심으로 -

Abstract

Insurance is Intangible product. The contract terms incorporates product itself. Therefore the explanation of standard insurance contract terms is more important. Insurance is on the other hands a small world that reflects the purposes of the outside world. The korean supreme court says that the insurer should explain the important contents of insurance contract terms. But there are exceptions: legal contents repeating clauses, generally well known contents, easily predictable contents without explanation. But it is not easy to decide wether it belong to the non explanation category or not. But the racial stereotyping is possible. We can decide furthermore according to supreme court decisions. Explanation objects(according to supreme court): family driving limit clause, transport at s cost exception clause, necessity of documentary consent of the insured in case of discordance between contractor and insured with coverage of death. Non explanation objects(according to supreme court): building extension notification and exception clause, car remodelling notification clause, loss of sub-insured qualification on case of divorce. There were Sewolho ship accident in korea in April 2015. The transport company made insurance contract about carriage cargo. There were exception clauses that the insurer becomes immune from obligation in case of accident during the sea region transport inner ship. The insured argued that the insurer should explain such a exception clause. But the supreme court has decided that it is not necessary to explain in such a case. It is a kind of obligation insurance. And the insured may habe contracted even in explanation actually done case. As a result, the decision of the Korean supreme court is right. Germany has reformed the German insurance contract law(VVG) in the year of 2007. According to this reformed law, the insurer should provide sufficient information to the insured. When it is not done, the insured can withdraw the contract. In Germany the standard contract terms regulation law is located in German Civil Law(BGB). The standard contract terms regulation contents apply also to insurance contract terms. The legal circumstances in Germany is different from that of Korea. Therefore, we can not compare simply the explanation object in insurance contract terms between the two countries. But we can consider the German legal system and court cases.