영국 해상보험법의 주요 개혁동향 - 보험자의 계약체결 후 최대선의의무를 중심으로-

Abstract

It is well-established under English insurance law that insurance contracts are based on mutual utmost good faith. Although most cases on the duty of good faith are concerned with the insured's duties rather than the insurer's, there are tentative suggestions in the recent case law that insurers should make inquiries, not act arbitrarily and not take into account extraneous circumstances in relation to claims. The problem with the duty of good faith in insurance contracts is that only one remedy is available for breach, avoidance. The remedy, avoidance, is a one-sided remedy, of far more use to the insurer than to the insured, because the insured is not entitled to damages for any further loss suffered through the delay or refusal of an insurance claim. English Law Commission makes four criticisms of the current law, that is, the law lacks principles, appears unfair, appears to reward inefficient and dishonest insurers, and leads to injustice. The Law Commission has reached the conclusion that the law in England is in need of reform. First, the Law Commission thinks that the insurer's primary obligation in insurance contracts, is to pay valid claims rather than to hold the insured harmless. Therefore, the insurer fails in this primary obligation, then under general contract principles, the insurer should be liable for any foreseeable losses. The test is objective. If the insurer refused a claim later held to be valid, the insurer would be liable, even if it had reasonable grounds for its original refusal. Secondly, the Law Commission proposed that where an insurer has acted in bad faith in refusing a claim or delaying payment, the insured should have the right to damages for foreseeable losses caused by the insurer's breach. The Law Commission argued that the duty of good faith should be non-excludable, in other words, a contract term could not exclude the duty or limit liability for its breach.