해상적하보험상의 피보험이익

Abstract

For a long time, it is generally accepted that insurable interest and indemnity principle are two features in indemnity insurance. But English Law Commission which has researched all areas of legal issues has concluded that insurable interest principle will be abolished in indemnity insurance. Korean Supreme Court has agreed the English Governing Clause in Marine Insurance Clauses. Accordingly English law and practice in marine insurance are a sort of sources of law in Korea. Since 1982, English Institute Cargo Clauses s. 11 provides that “① In order to recover under this insurance the Assured must have an insurable interest in the subject-matter insured at the time of the loss. ② Subject to Clause 11.1 above, the Assured shall be entitled to recover for insured loss occurring during the period cover by this insurance,notwithstanding that the loss occurred before the contract of insurance was concluded,unless the Assured were aware of the loss and the Insures were not.” This new insurable interest clause is recognised as reversing the retrospective insurable interest of the decision in Sutherland v. Pratt. And so present English law and practice’s position in English marine cargo insurance is that C.F.R. buyer or F.O.B. buyer cannot succeed in claiming the loss of goods prior to shipment. Seoul High Court 93na49149 decision ruled that the buyer on C&F terms had the insurable interest on anticipated interest of the goods prior to shipment. The writer thinks that this decision was right in appling English law and practice to Korean law, because the case applied the 1963 Institute Cargo Clauses. But Korean High Court’s position no longer is right.