임원배상책임보험의 보험금청구요건과 면책사유의 명시ㆍ설명의무에 관한 연구 - 대법원 2019.1.17.선고 2016다27720판결을 중심으로 -

Abstract

Directors' and Officers' liability insurance(D&O insurance) is the liability which the insurer shall pay the loss of each director or officer of the company arising from any claim or claims first made against the directors and officers during the policy for any alleged wrongful acts undertaken in their capacity. The Claim is not limited to civil claims, but also include directors' and officers' criminal action. Therefore, it is reasonable for the insurer to compensate for the costs of attorneys spent by officers in defense of defendants in criminal cases filed against the insured. When insurer makes an insurance contract with the insured, the insurer shall be obliged to issue the insurance contract to the policyholder and explain the important terms and conditions of the contract. However, the policys' clause that the lawyer's remunerations paid to acquit a criminal case accused of violation of the Capital Markets Act is exempted is an important matter of the insurance contract. If the insurer does not fulfill the explicit explanation obligation, the policys' clause is not included in the insurance contract. In addition, The policy stating that insured can not pay the insurance money if insured violates the notice of the accident and prior consent to use defensive costs is beyond the scope of the breach of notification duty of the Commercial Act, so this provisions are the important part of the insurance contract, and the insurer has a duty to explain this provisions to the insured in detail. Therefore, even if it is the defensive cost is spent without the prior consent of the insurer, the insurer should pay the insured if there is a just cause. However, it should be limited to a considerable extent necessary for defense in order to suppress the expenditure of excessive defensive costs.