보험사고와 인과관계가 없는 고지의무 위반에 대한 계약해지권 행사의 적정성에 관한 판례연구(대법원 2010. 7. 22. 선고 2010다25353 판결)

Abstract

According to the Commercial Act, Article 651(Termination of contract due to breach of duty of disclosure), is defined as “if, at the time of making the insurance contract the policyholder or the insured, by fraud or gross negligence, fails to disclose or not to misrepresent material facts, the insurer may terminate the contract within one month after it knew the non-disclosure or misrepresentation or within three years after the contract was made.” Also, according to Article 655(Termination of contract and Right to demand Insured amount), is defined as “… Provided, That this shall not apply when it was provided that the occurrence of the insured events was not affected by the non-disclosure or misrepresentation or by a substantial alteration or increase of the risks insured.”Generally a breach of ‘duty of disclosure’ may take the form of ‘misrepresentation’ which may be either innocent or fraudulent and ‘non-disclosure’ which may be innocent or fraudulent(sometimes called concealment). In each case, and regardless of whether there is fraud or not, the insurers have the right to terminate the contract ‘ab initio’(from the beginning). The effect is that the contract is cancelled retrospectively so that the insurers are not liable for any claims arising between the making of the contract and the time when it is avoided. Therefore, the right to avoid the contract does not depend upon there being any connection between the non-disclosure(or misrepresentation) and the circumstances of the loss. If insurers discover an actionable breach of ‘duty of disclosure’, they can avoid the contract at any time, that is question. According to this Supreme Court case, the insurers may terminate an insurance policy for breach of 'duty of disclosure' unless there is an connection between the breach and the loss. In other words, even if there was no connection at all between the non-disclosure of past medical history and the loss, the insurers would have the right to terminate the policy. this is because it is the relevance of a particular fact to the risk as a whole which is the issue, not its relevance to the circumstances of any particular claim. Also in principle, the issue of breach of 'duty of disclosure' usually arises when there is a dispute about a claim under the policy. the insurers do not have to wait for a claim to happen before doing so. In conclusion, I strongly support this Supreme Court case, because the judgement made it clear the implication and extent under the Commercial Act, Article 655.