A Comparative Study of Insurance Contract Laws in Europe and Korea

Abstract

The foundational efforts for harmonization of European contract law created the CFR, thereby establishing the PECL and the PEICL. One of the unique features in the PEICL is to avoid choosing professional languages that can be problematic in interpretation. In particular, it adopted the words in the PECL not to give any impression that the PEICL systemizes the English common law concepts; thus, it accepts the expressions that are internationally recognized, such as those of the international transport convention. The PEICL includes the general principles with regards to insurance contract, which can be applicable in the Member States. However, there are some problems in its implementation in legislative perspective since it is not an enforceable regulation but merely a principle. In order to solve this problem, one can suggest a system that can give an opportunity for the contracting parties to decide whether they choose the PEICL as the governing law in the contract. The aim of this argument is to help the parties choose the European law as the governing law rather than domestic law, thereby solving the problem in the legal disputes between the parties, which will eventually contribute to the completion of the internal market. Accordingly, when the contracting parties agree to decide the PEICL as the governing law, it shall be legally binding although there is a limitationon selecting a certain law under international private law. Furthermore, the PEICL stipulates the disclosure duty of the insured. The insurer has the right to obtain information from the precise and accurate a questionnaires-form in order to measure the reasonable insurance premium and to decide the contents of the contract. In particular, the information,which the policyholder needs to provide, should include everything important he knew or should have known. The fulfilment of this duty is the passive notification duty of the insurance contracting party. Moreover the insurer has a duty to deliver the materials and documents and to explain the terms of the contract to the policyholder. The European scholars’ research and efforts for harmonization of European insurance contract law and the prominent scholars’ academic ability in the EU will be the great models to the Korean scholars when they discuss the amendment to the Korean insurance act. Furthermore, it can be an important guidepost for designing a harmonized form of insurance law of two Koreas in the future. Therefore, it will be worthy learning from the comments by the leading European scholars.