적하보험에서 보험자의 적하보험약관 설명의무에 관한 연구

Abstract

The institute clauses including "Notwithstanding anything contained here in or attached hereto to the contrary, this insurance is understood and agreed to be subject to English law and practice only as to liability for and settlement of any and all claims" are regularly include in cargo insurance contract throughout the world. A difference of opinion can arise as to the interpretation of the effectiveness of the English law and practice clauses in cargo insurance policy, as the institute clauses containing restrictive wording such as "only as to liability for and settlement of any and all claims". Under English law and practice, an insurer does not have a duty to explain and disclose important cargo insurance clauses to the assured even if the assured must disclose to the insurer, before the contract in concluded, every material circumstance which is known to the assured, and the assured is deemed to know every circumstance which, in the ordinary cours of business, ought to be known by him. Under the Korean Act for the Regulation of General Clauses, the Korean Commercial Code, the insurer has a duty to explain and disclose such important cargo insurance clauses to the assured. The insurer must disclose to the assured the cargo insurance clauses which determine whether the insurer will pay the claim amount. Therefore if the governing law of cargo insurance contract is English law and practice, an insurer may explain and disclose such important cargo insurance clauses to the assured in utmost good faith. These important cargo insurance clauses may be validly incorporated into a cargo insurance contract even if an insurer did not provide such explanation and disclosure and the insurer does not indemnify the assured for losses covered under such clauses. By contrast if the governing law is the aforementioned Korean Act for the Regulation of General Clauses, an insurer must provide such explanation and disclosure. If the insurer fails to make such disclosure, the assured may cancel the cargo insurance contract within one month from the date of entering into contract. If English law and practice were considered to unconditionally apply to every legal matter in cargo insurance, there would be several legal problems its interpretation. The Court does not unconditionally apply English law and practice to every legal matter in cargo insurance, and limits the range of its application to the liability for and settlement of any and all claims. The Court's interpretation is that the liability for and settlement of any and all claims is not the subject matter insured but is the establishment of a contract of a cargo insurance, that the institute classification clause is a special clause and the insurer must explain and disclose it. A contract of a cargo insurance is a contract whereby the insurer undertakes to indemnify the assured, in manner and to the extent thereby agreed, against marine losses, that is to say, the losses incident to marine adventure. The Korean Supreme Court's decisions based on the Korean Act for the Regulation of General Clauses are reasonable. The insurer must explain and disclose these special clauses to the assured. These special clauses is material which would influence the judgement of a prudent assured recovering a loss or determining whether the insurer will count the claim amount.