독일 보험계약법상 최초보험료의 지급지체에 관한 연구

Abstract

Once an insurance contract is concluded between the insurer and the insured, the contract parties, the insured is obligated to pay the insurance premium to the insurer (Clause 638 of the Korean Commercial Code). Unless otherwise agreed upon between the insurance parties, the first premium must be paid before the commencement of the insurer's liability (Clause 656 of the Korean Commercial Code), and accordingly the insured must pay the first installment or all at once of the premium due without delay after the establishment of the insurance contract (Para. 1-1 of Clause 650 of the Korean Commercial Code). Furthermore, even though the insurer is required to issue the insurance policy without delay upon the establishment of the insurance contract, in the absence of payment of the due sum, it does not need to do so (Clause 640 of the Korean Commercial Code). The German Insurance Law, in contrast to its Korean counterpart, stipulates that the issued insurance policy must be received by the insured before the payment of the premium as far as the amount of the premium to be paid, in first installment or all at once, is negotiated and agreed upon (Article 33 of the German Insurance Contract Law). This paper addresses the legal effects surrounding the delay in first premiums payable without delay right after the contract comes into effect rather than the ongoing premiums during the contract period. The Korean Commercial Code (Para. 1-1 of Clause 650) and the German Insurance Contract Law (Article 37) show that they both have in common that the first premium must be paid before the commencement of the insurer's liability. In addition to this commonality, one thing evident is that the German legislators took much consideration of increased protection of the insured's interests and rights when they amended the law in 2008. In particular, the removal of the previous provision involving such a fictitious right of cancellation of the insurance policy, the restrictions on the cancellation right and requirements for indemnification on the part of the insurer, and the saving provision that makes it clear that the insured must be made aware of the legal effects arising from non-payment of due premiums, all refect such intention. This is believed to throw a meaningful implication of how the legal issue relating to the delay in initial premium payment should be approached in efforts to best revise the existing Korean law concerning insurance policies in the future.