고지의무의 입법상 과제

Abstract

Recently, Insurance Contracts Law in Germany and Japan is reformed. The Consumer Insurance Act of 2012 in England is legislated too. The important object is regulation which is concerning Duty of Disclosure. Now, Korea Commercial Code(Part 4. “insurance contract”) is under revision, reform of Duty of Disclosure fell short of expectations. The elements which are legislative concerned for duty of disclosure on insurance contract are as follows. 1) It has to convert the duty of voluntary disclosure to the duty of passive disclosure. It is reasonable for insurer who has an diverse area of information and experience to decide what is needed in risk measure. 2) It needs the induction of the right of contract change, principle of compensation, proportionate remedy as an effect on breach of the duty of disclosure in insurance contract. In case of breach on duty of disclosure by intend or gross negligence on Korean Commercial Law, it regulates as an effect that insurers have the right which is terminate the contract. Thus the principle of all or nothing has been applied in the present law. It needs to mediate for interest between insurer and policyholder by giving various effects which contain principle of compensation, proportionate remedy about breach on duty of disclosure. And it must reconsider for intend or gross negligence which are subjective requirement for the duty of disclosure as prior condition of introduction for principle of compensation, proportionate remedy. 3) To be interrupted for disclosure of policyholder by assistant of insurer needs stop to exercise of right to terminate contract by insurer on breach of the duty of disclosure. This study concentrates on showing desirable reform way in regard of duty of disclosure. The above contents are not reflected in this revision, but it will be better if those are comprised in the next revision.