상해보험계약에서 태아의 피보험적격 - 대법원 2019. 3. 28. 선고 2016다211224 판결 -

Abstract

A fetus without the capacity of right cannot be the insurant. This is clearly confirmed as follows through the interpretation of commercial law regulations : First, accident insurance is personal insurance, so only natural persons can be the insurant. Second, even if the insurant is an object of insurance, it is necessary to consider the possibility that the right of profit will be belong. In addition, the object of insurance must be distinguished from the object of rights and the object of protection. Third, if the fetus can be the insurant, the right to claim insurance money should also belong to the insured fetus. However, it is impossible because the fetus does not have the capacity of right. Fourth, the special agreement between the parties recognizing the insurant eligibility for the fetus and Article 103 of Korean Civil Act and Article 663 of Korean Commercial Act are irrelevant. Fifth, even if the insurant eligibility of fetus is denied, the purpose of insurance can be achieved through other methods. Therefore, the contents of the contract in the subject case should be decided according to the special contract terms and conditions, not the special agreements of the parties. However, in some cases, the following can be considered a solution : unjust enrichment in Article 741 of Korean Civil Act, discharge without obligation which conforms to moral sense in Article 744 of Korean Civil Act, compensation for damage in Act on Fair Labeling and Advertising. The subject judgment considered that the insurance payment for injuries occurred during the fetal period was reasonable. This judgment is based on the need to protect the fetus. In terms of consumer and fetus protection, an opinion like this may be accepted. Nevertheless, it is not possible to accept an interpretation that is clearly contrary to the mandatory provision. As long as the interpretative resolution has its limitations, ultimately this problem must be solved by legislation. Otherwise, it is necessary to clearly point out the limitations of fetus insurance so that consumers can know the substance of the product they want to contract in detail, thereby ensure consumers’ practical opportunity of choice. This will be a more fundamental solution.