해상보험계약상 권리의 양도와 관련된 일부 쟁점의 고찰

Abstract

Cargo insurance policy is frequently assigned to buyer in the international sale of goods depending upon its contract’ terms and condition. And the assignment of any rights from hull insurance contract inclusive of claims for insurance money plays an important role in ship finance for the purpose of provision of security to the lender. Korean Insurers use the marine insurance forms based on the Institute Clauses which were prepared by the Institute of London Underwriters and contain a governing law clause of English Law as the governing law over the insurance contracts. In such circumstances, the Act on Private International Law provides English Law as the objective governing law for the assignment or provision of security of the rights under the marine insurance contracts. Given that, requirements under the relevant English law are to be satisfied for taking the legal effects of the aforementioned assignment or provision of security. On the other hand, the English law provides that there are three ways to assign any rights under Marine Insurance Policy to Assignee, that is to say, Assignment under the Marine Insurance Act 1906 s. 50, Assignment under the Law of Property Act 1925 s. 136, or Assignment in equity. Out of these, the Assignment under the MIA s.50 is characteristic in that the insurance policy can be validly assigned to the Assignee only in the case that the entire insurable interest is contemporaneously transferred to the same. The Assignment under the law of Property Act 1925, s.136 is very similar with Assignment of claims under the Korean Civil Act in its legal effect, however requirements for this assignment are different from those of the assignment under the Korean civil act. The most distinguishable character of English law from Korean Law is Assignment in Equity that could take effect if both parties’ actual intention of assignment of the subject rights is confirmed and verified even in the case that the above two ways of assignment do not take effect on the ground of requirements of them not being satisfied. It is unique in this Jurisdiction that the equitable assignee must join the assignor to the proceedings or file the proceeding against the assignor and other insurer as Defendants. The international practice of assignment or provision of security of marine insurance policy is presumed to have been established based on the English law and it has been adopted by Korean entities, as the result of which Korean insurers and Financial Institutes deal with the subject assignment in the same manner as the international practice. For instance, Korean hull insurers provide a financial institute which gave a ship owner a loan for purchasing a vessel with Loss Payable Clause in the course of a ship finance. However, it is very difficult to understand how the Loss Payable Clause is classified or characterized with from the Korean Law perspective. Under the circumstance, if the Korean entities participating in the international trading of goods do not exactly understand what the English law is in respect of the aforementioned assignments, they might suffer from a variety of legal and financial risks as the result of the assignment being invalid and ineffective. Regardless of the foregoing, it seems that Korean practitioners and Scholars have not paid attention to that issue. With this in mind, this paper would take into in-depth considerations of various relevant issues including the principle of determination of governing law over the assignments of rights available from Marine Insurance contracts, the assignment under English law and other legal issues from Cargo insurance and Hull insurance in order to exactly understand the assignment under the English law.