책임보험의 운용에 있어서 한ㆍ독 보험계약법상 차이

Abstract

Liability insurance is an insurance contract of which the subject-matter insured is the loss of property in case the insured bears the liability of compensation to a third party. The liability insurance in the modern sense is intertwined with the nineteenth-century industrialization. Beginning with the introduction of the early compulsory insurance based on the process of creating the system of liability insurance, it has taken about 200 years to connect this system to various risks of industrial society and to stabilize it as a social system until now. As Article 719 to Article 726 of the Korean Commercial Code (hereafter ʻKCCʼ) Part 4 Chapter 2 Section 5 are provisions on liability insurance and have not been particularly arranged in logical sequence, the common provision and the special provision have somewhat been confused systematically. The provisions of the German Insurance Contract Act 2008 Part 2 Chapter 1 (Liability) have been separated into Division 1 (General provisions) Article 100 to Article 112 and Division 2 (Compulsory insurance) Article 113 to Article 124 and have an identical legislative system with the previous Act. The most conclusive difference between the two legislative systems is that while the KCC provisions on liability insurance do not differentiate voluntary liability insurance and compulsory liability insurance and acknowledge the direct right of action to the insurer by the third party in every liability insurance, the German Insurance Contract Act 2008 only accepts the direct right of action to the insurer by the third party in compulsory insurance. The acknowledgement of the direct right of action to the insurer by the third party without differentiating voluntary insurance and liability insurance frequently conflicts with foreign liability insurance accidents in international private law. This was the case with the insurance legal solutions of the Sewol ferry case. Therefore, it is utterly crucial to correct this situation by acknowledging the direct right of action by the third party only in compulsory liability insurance. Furthermore, I suggest the following specific stipulation by law concerning the duty required in compulsory insurance. As an insurance accident and an causation accident are differentiated in compulsory insurance, its specificity should be recognized so that the duty of notice of the occurrence of a causation accident should be imposed apart from the duty of notice of the occurrence of an insurance accident in KCC Article 657. Moreover, if the performance of the direct right of action raised by the third party after a causation accident actualizes into a lawsuit, this should be notified to the insurer. The hitherto mentioned duty of notice is necessary in order to prevent the possibility of the extension of the loss to an insurance accident in compulsory insurance. Based on this notification, the insurer may be able to cope with an insurance accident. Therefore, in accordance with this object, besides the duty of notice of the occurrence of a causation accident and the duty to notify a lawsuit on the part of the policyholder, the duty of notice of the occurrence of a causation accident and the duty to notify a lawsuit on the part of the third party should be stipulated. In addition, liability insurance necessarily premises a third party unlike other insurance, and in case the third party performs the direct right of action against the insurer and the insurer demands related information, then it should be provided and the duty of cooperation by the third party in submitting required documents or evidence should also be stipulated.