보험약관 내용구성과 그 적용에 대한 일고 - 대법원 2016.5.12. 선고 2015다243347 판결을 중심으로 -

Abstract

The interpretation of the insurance policy formed by including the recently disputed Suicide indemnity limit provision into the object of accidental death special agreement has become a controversial issue regarding the application of contra proferentem. The Supreme Court has judged that in case of the interpretation of the policy, the insurance policy is to be basically interpreted fairly and rationally based on the utmost good faith principle without considering the purpose or intention of the individual contracting party, and that it should be an objective and uniform interpretation with the understandability of the average consumer as its criteria. The Supreme Court has also clarified that if it is objectively possible for the policy to be interpreted in a polysemous way, the contra proferentem will be applied to interpret the clause. The direction of this rule of the Supreme Court is fundamentally right. However, the insurance policy of the case can be intactly applied as it is rather than be interpreted in a polysemous way, so that its meaning is not multivocal but clear. It is therefore possible not to apply the contra proferentem per se. The insurance policy is the contractual content which determines the organization of the insurance product and the specific payment; it is the subject of the contract while it is the product itself. As the business operator, the user of the clause, has unilaterally made and presented it, it is not a general contract terms and conditions made through negotiation with the other party. This sort of clause usually passes through the evaluation of the administrative agency. In case of insurance, it becomes the object of regulation through the abstract evaluation of the Financial Supervisory Service. Since it has been evaluated by the supervisory authority, the contract following the insurance policy is still a terms and conditions of business in a state of a typically information asymmetry . In this respect, when it comes to the application or interpretation of the insurance policy, it is right and proper to consider the policyholder. The insurance industry is based on trust. The meaning of the insurance's associativity mentioned as a ground for an argument of the insurer in relation with the interpretation of the insurance policy is a significant value to consider in an insurance contract, but the individual expected profit of the insured is also a significant basis for an insurance contract required to be reasonably protected. Since the party that composes the content of clause of the insurance policy is an insurer, the insurer is also responsible for the composition of the content of the policy. This is not an issue of the contra proferentem, the criteria for judgment when the insurance policy is polysemously interpreted, but rather one in which the contracting parties agree to be mutually included into the content of the contract and apply it exactly as they have concluded the contract.