보험계약자의 고지의무위반과 보험자의 보험금지급책임에 관한 고찰

Abstract

As to the Assured’s duty of disclosure before making of insurance contract, the Korean Commercial Code(hereunder, KCC) has some legal problems as below; ① the insurer’s duty of payment of insurance money may rely on the occurrence of insurance accident, and the causative relationship between the occurrence of accident and the breach of the duty of disclosure, ② the breach of the duty of disclosure can not be established merely with the assured’s state of mind as being carelessness, ③ as the KCC confines the legal effects of breach of the duty of disclosure to ‘All or Nothing’ principle, the assured can not expect a compensatory remedy which means the insurer may reduce proportionately the amount to be paid upon assured’s claim. Given the fact that the insurance contract based upon the law of large numbers and risk-distribution among group of membership, it is highly desirable for all the risk should be homeogenous. In this sense, it is necessary to give disadvantages to the assured who entered into the insurance contract by breaching the duty of disclosure. Although the matter of what kind of disadvantages can be levied upon the assured may be placed on the policy-makers, basically they should take into account some prominent characteristics of insurance contract, most importantly the principle of protection of consumers and the law of large numbers of insurance contract. Recently with making of ‘The Consumer Insurance (Disclosure and Representations) Act 2012(hereunder CIA)’, the UK revised the duty of disclosure especially with the consumer insurance contract. According to the CIA, if the misrepresentation was careless, the insurer may have the three options based upon what the insurer would have done had the consumer(assured) taken care to answer the question accurately; ① avoidance of the insurance contract or, ② amendment of the contract, ③ a compensatory remedy. Upon considering that the KCC only needs either deliberation or gross negligence as requirements for the establishment of the breach of the duty of disclosure, it is recommendable to review the introduction of the substantial contents of the UK legislation, as a matter of ‘de lege ferenda’.