영국의 2015년 보험법상 보험계약자의 신의성실의무

Abstract

This article aims at studying utmost good faith doctrine of the policyholder under the English Insurance Act 2015. Korea Supreme Court Decision 2015 da 5194 Decided on June 23, 2016 applied English Marine Insurance Act 1906. Therefore it is important to research the English Insurance Act 2015 which revised the MIA 1906. First, section 14 removes the remedy of avoidance from the scope of s. 17 of the MIA 1906. The intention of s. 14 is that good faith will remain an interpretative principle, with section 17 of the 1906 Act and the common law continuing to provide that insurance contracts are contracts of good faith. Second, the insure’s duty of fair presentation under the Insurance Act 2015 retains to volunteer relevant information, because of the inherent imbalance of knowledge between the parties. The revised issues is as follows. (1) The duty to observe the utmost good faith becomes reciprocal or mutual. It needs the co-operation of both parties to the prospective contract, the insurer cannot just sit back. (2) The Act revises the knowledge of the insured which the insured must disclose to be updated to the present practice, when the insured is an organization such as public company, where a large number of individuals will have knowledge of facts that may be material to an insurance taken out by the organization. (3) The insured should disclose the information revealed by a reasonable research of information available to the insured(whether the research is conducted by making inquiries or by any other means). (4) The insurer has a more limited liability, in that nothing is said about a reasonable research but instead the concept is information held and readily available it. (5) If the insured fails to make a fair presentation, the insurer has various remedies proportionate to the nature of insured’s violation such as deliberateness or carelessness. (6) The 2015 Act provides for a transparency requirement which must be complied with, to a modification of the default position under the 2015 Act. Thirdly, the Insurance Act 2015 provides the remedies available to the insurer where the insured present a fraudulent claim as follows. (1) Concerning the effect of the fraud upon the claim which it relates, if the insured makes a fraudulent claim, the insurer are not liable to pay the claim. But the Act does not define ‘the claim’ that the insurer are not liable to pay, and it has been left to decide how broadly ‘the claim’ should be characterized based on the facts and circumstances of each case. English law and practice on fraudulent claim would be useful to Korean academics and practice. (2) The act provides that an insurer may, by notice to the insured making a ‘fraudulent claim’ treat a contract as having been terminated with effect from the time of ‘fraudulent claim’. And The act states that if the insurer treats the contract of insurance as having beeb terminated’, it does not affect the rights and obligations of the parties with respect to a ‘relevant event’ occurring before the time of fraudulent claim.