고지의무의 입법적 연혁과 최근동향

Abstract

The issue concerning the duty to disclose in the insurance law holds an important position in the disputes between the insurers and the insureds. Recently, German Insurance Contract Law and Japanese Insurance Law have greatly been revised, and the modernization of the duty to disclose has been a major theme of the leading nations' legislature. The changed system about the duty of disclosure is as follows: the abolition of the voluntary disclosure system which has been one of peculiar features distinguishing the insurance contract from other ones, the introduction of compensatory remedy as a substitute for all or nothing principle, the protection of the insured relating to insurance intermediaries’ act. English Law Commission has drastically reviewed its own country’s insurance law to take a global lead, and the publication concerning misrepresentation, non-disclosure by the insured, the role of intermediaries in this context, and insurance warranties on 16 November 2007. In this paper, English Law Commission offered various leading proposals such as a reasonable response to questions, proportionality rule, the reasonable insured rule etc. On 1 August 2009 the Project group “Restatement of European Insurance Contract Law”(Chairman: Prof. Dr. Helmut Heiss) published the draft common frame of reference chapter III, Section IX insurance contract. This draft has integrated Anglo-american insurance contract law and civil one such as German, French law. Every nation's insurance law should be subject to global standards, because the insurance is based on statistical data, and large risks such as ships, aircrafts have been distributed between the original insurer and English, American, other advanced nations' reinsurers. Korean Insurance contract law did not be updated since 1991. 12.31. Accordingly Korean system on the duty of disclosure should be modernized in view of recent development. This work of revision has to be based on the comparative legal research. This paper aims at studying leading nations’ changes on the duty of disclosure such as England, U.S., Australia, Germany, Japan, France. And the writer offers the proposals to modernize disclosure system.