냉동창고 건물의 화재보험계약에 있어 고지의무 위반과 관련된 법적 쟁점들에 대한 비판적 검토- 대법원 2012. 11. 29. 선고 2010다38663, 38670판결(파기환송심 서울고등법원 2013. 5. 31. 선고 2012나101352, 101369 판결)

Abstract

According to the Korean Commercial Act article 651, breach of duty of disclosure is defined that at the time of making an insurance contract, a policyholder(or insured), due to bad faith or gross negligence, failed to disclose or misrepresented material facts. As the effects of breach of duty, the insurer may terminate the contract within one month after it becomes aware of the non-disclosure or misrepresentation or within three years after the contract was made. The article 651 of Korean Commercial Act is based on utmost good faith, and it has been interpreted to mean that a insured is under a duty volunteer material information, and that the penalty for failing to do so is avoidance. It places on obligation on the insured to disclose every circumstance which would influence the judgement of a prudent insurer in fixing the premium or determining whether he will take the risk. This judgment became issue what is the meaning of gross negligence. The Supreme Court sentenced the following, a insured of this cases took insurance contract for the purpose of deceiving the insurer, and did not answer properly any material facts about which the insurer asks in writing. But I strongly oppose this Supreme Court's conclusion. This judgement can fluence to Making the Duty of Disclosure Passive duty of disclosure that is discussed the latest, interest is converged. ‘Making the Duty of Disclosure Passive’ means that the conversion from the duty of voluntary disclosure to the duty to answer questions. Now many countries are changing to ‘Making the Duty of Disclosure Passive’ in the world. Because the ordinary policyholder(or insured) who is not well equipped with the knowledge of materiality has to run the risk of losing his insurance claim because of a failure to volunteer material facts. Also it is suggested that a fair balance between a policyholder(or insured) and the insurer be struck by insurer’s having to ask questions about material facts and a policyholder(or insured)’s having only to answer those questions. In this paper, I propose that there shall be no duty on a policyholder(or insured) to disclose matters about which no questions are asked. Also this paper tries to study on the recent trend of abolishing voluntary disclosure, and make some suggestions about the reform of the Korean Commercial Act.