보험자의 보험약관 설명의무와 그 새로운 입법안

Abstract

Laws such as the Insurance Part of the Commercial Law, the Regulation of Standard Contracts Law, and the Insurance Business Law stipulate the insurer's obligation to explain standard insurance terms as the minimum legal device for protecting policyholders under informational asymmetry resulting from the complexity of the standard insurance terms drafted unilaterally by the insurer and the adhesion of insurance contracts. With regard to the insurer's violation of the obligation to explain standard insurance terms, while the Insurance Part of the Commercial Law stipulates only the policyholder's right of rescission but is silent about the specific effect of the violation when the policyholder does not exercise the right of rescission, the Regulation of Standard Contracts Law applies the regulation of incorporation of clauses. In this way, the double application principle based on the will theory confronts the commercial law application principle based on the norm theory with regard to the effect of standard insurance terms after the period for exercising the right of rescission has passed. Accordingly, as a bill faithful the double application principle, we suggest a new bill in which Clause 2 of Article 638-3 of the Commercial Law stipulates, “If the insurer violates the obligation to explain standard insurance terms the insurer shall not assert the corresponding standard insurance terms as the contents of the insurance contract,” having the same purpose as Article 3-4 of the Regulation of Standard Contracts Law based on the latter part of Article 17 of the Chinese Insurance Law on insurer's obligation of evident explanation. This will be the amendment satisfying best the legislative purpose of the obligation to explain standard insurance terms. Moreover, we need to establish standard guidelines for interpretation in order to prevent confusions in interpretation resulting from the double application of relevant laws and to enhance the efficiency of legislation. What is more, we need to improve the insurance law as an independent special law according to international standards in order to advance commercial legal systems and to intensify the insurer's information duty.