상법 제663조에 관한 해석론의 문제점과 개선방안에 관한 소고

Abstract

The Commercial Act article 663 is so called “the principle of the prohibition of the disadvantage alteration” and it is a special legislation that makes all the articles in the 4th part of Commercial Act to be minimum standard for the protection of policy holder, the insured or beneficiary. That is to say, all the articles in the 4th part of Commercial Act turn to be relative compulsory statutes owing to the article 663. Even though the form of this provision is unprecedented in comparison with other legal systems, the contents and the scope of coverage are excessively abstract. The main issues that have been reviewed through this study are summarized as follows:first whether it is possible to accept a concept of exclusions from application. second whether it is reasonable for the accident issue on the exemption coverage from application and the criteria for judging the non-mandatory provisions. Hence, it would be desirable to revise the provision for improvements. It is imperative to make a systematic classification of the existing judicial decisions according to their common characteristics, make clear the applicable coverage and the effect of the principle, and prescribe the provision of the principle at the last part of each chapter or each section. Futhermore, it is required to individualize the scope of subjects under protection. In addition,to ensure equal negotiating power and from the viewpoint of providing paternal consideration and protection of the law, it is necessary to provide an applicable provision to allow concrete judgment.