고지의무위반시 인과관계의 존부 및 계약전발병부담보조항에 관한 판례의 검토

Abstract

The insured’s duty of disclosure is based on good faith in insurance contracts. The contents of the duty have constantly changed according to the market situation and legislative policies in each country. The duty of disclosure, based on good faith in an insurance contract, helps to maintain the soundness of the insurance exposure unit by preventing moral risk. At the same time, the duty of disclosure is an effort to find a way to protect policyholder. While legislative efforts on the insured’s duty of disclosure in each country continue, the debates on the duty of disclosure are still ongoing. This paper has selected and reviewed two vital topics that have not been frequently discussed in academia but are causing serious conflicts in practice. Recent notable court judgements on the subject matter covered in this paper have been a significant trigger for the study. The issues of the insurer’s liability for insurance payment and the insurer’s right to rescind the contract concerning the causal relationship between the breach of the insured’s duty of disclosure and the insurance accident that occurred were resolved through the amendment of Article 655 of the Commercial Act. However, the dispute over whether a causal relationship exists is being raised in almost all cases of breach of the duty of disclosure. Regarding causal relationship issues, the 1992 Supreme Court decision 92da28259 has been recognized as a landmark case. Nevertheless, this paper pays attention to the fact that a recent court’s judgment narrowly recognizes the causal relationship. In addition, the global legislative trend on the subject matter does not require a causal relationship requirement. This article mentioned the issue of reflecting the global legislative trend in Korea. The issue of pre-existing condition clause is considered to be an issue corresponding to the freedom of product composition of the insurer. The Financial Supervisory Service’s Financial Dispute Mediation Committee made a mediation decision in 2017 that the pre-existing condition clause attempted to circumvent the rule of the insured’s duty of disclosure. A closer examination of the grounds for the mediation shows that the arguments of the Dispute Mediation Committee are similar to German precedents regarding the same issue. However, the US, UK, and Japan do not deny the pre-existing condition clause but provide measures to protect policyholder from it. The Financial Supervisory Service completely deleted the pre-existing condition clause from the standard terms and conditions. In contrast, the Supreme Court has made two decisions recognizing the validity of this clause. The court’s decisions differ from the Financial Supervisory Service or interpretations of some scholars regarding the same issue. In this regard, it is necessary to discuss the issue of reviving this clause in the standard terms and conditions but making the content of the terms plain, shortening the period for claiming exclusion due to the pre-existing condition, and ensuring that the insurer's duty to explain can be properly performed. The insured’s duty of disclosure raises various issues beyond those discussed above. This paper reviewed some of the issues that academia has not frequently addressed.