보험목적의 양도에 대한 비교법적 고찰

Abstract

There has been a proposal for amendment to the current Commercial Act in order to solve the problem that Article 679 of the Act prescribes only the subject-matter insured and the duty of notice but does not state the violation of notice duty. The Committee for Commercial Act Modernization has suggested the presumption of transfer of duty in insurance contracts when the insured transfers the subject-matter insured, which is somewhat different from the existing provision of the Commercial Act. In addition, according to the proposal, when a assignee or a assignor does not give notification of transfer, the insured may have exemption under certain circumstances, and it allows the insured to cancel the insurance contract within a month from the date of when he or she acknowledges the subject-matter insured. In this case, the proposal ensures the effect of cancellation for 15 days after when the insurance contracting party receives the notification of cancellation, thereby allowing a certain period of defence for deficiency of insurance. Therefore, it is meaningful since it can induce a comparatively stable policy of solving the situation of uncompensated care. It is predictable that the implementation of stable insurance policy can solve the potential dispute between the assignor and the assignee of the insurance. There are a quite number of cases of legislation on transfer notification in the subject-matter insured. France, Switzerland, Italy, and Spain impose the duty of notice for subject-matter insured, and they also allow the right of cancellation(surrender) of insurance. However, the new Japanese insurance law withdrew the statement of subject-matter insured. Among the countries that provide the notification duty, Germany establishes very detailed legal provisions. Article 95 of the German Insurance Contract Act presumes that a assignee accepts the right and duty in the insurance contract through subject-matter insured. Moreover, both of a assignee and a assignor must pay the premium during the period of processing transfer. When the insurance purpose is transferred, the insured has the right of terminating the insurance contract relationship within one month period under Article 96(1) of the Act. Article 97 stipulates the duty on the assignee and the assignor with regards to the subject-matter insured. Where there is any violation of this provision,the insured can have the exemption benefits from the law on duty. Considering this comparative perspective, it is necessary to adopt the right of cancellation(surrender)if there is any violation of notification duty, especially when providing any proposal for amendment to Article 679 of the Korean Commercial Act.