위험증가와 통지의무에 관한 상법 규정의 법적 재검토

Abstract

The Insurer, as well as society at large, has an interest in risk management and loss prevention. Thus it suggests rules that encourage or at least allow some degree of intervention or control by the insurer over the conduct of the policyholder during as well as immediately before a period of insurance cover. Whatever the substance of a special rule for aggravation of risk, the aggravation that triggers it is usually defined. Some legislation speaks simply of a ‘material’ increase but most national legislation goes further. A typical definition is an “increase … such that had the Insurer been aware of the fact or incident, it would not have concluded the insurance contract, or would not have concluded it under the same terms.”The insurer is entitled to reconsider the insurance as and when the insurer becomes aware of aggravation of risk. If an aggravation occurs, the insurer is obliged within one month of becoming aware of it to propose an appropriate ‘modification of the contract.’If the policyholder acquires knowledge that the risk has been increased by a change made or permitted without the insurer's approval, he must inform the insurer. The policyholder is required to notify the insurer ‘without delay.’ The insurer whishes to reassess the ongoing risk as soon as possible but the policyholder may have difficulties in assessing the changed situation and in communicating with the insurer. Notification rules are mostly found in countries where cover is commonly contracted for periods longer than a year and where there is a relationship of trust and mutual commitment between insurer and policyholder. The policyholder is now required to report any changes which affect the accuracy or relevance of his answers to the questions posed by the insurer when the cover was contracted. The rule agreed provides that any policy term on aggravation of risk shall be without effect unless the aggravation of risk to which the term applies is (a) ‘material’ and (b) ‘specified in the contract of insurance.’ Aggravation is material, as it is in the rule of disclosure, if it is of a nature to have an influence on a reasonable insurer's decision whether to enter into the contract at all, or whether to do so under the terms agreed.