책임보험에서 피해자의 직접청구권의 준거법-대법원 2017. 10. 26. 선고 2015다42599 판결-

Abstract

Under the Korean Commercial Act, a third party may directly request an insurer to compensate for losses caused by an accident attributable to an insured when the third party suffers losses by the perils insured during the coverage period. However, under the laws of some other countries such as the United Kingdom and Germany, a third party does not usually have a direct cause of action against an insurer unless some strict requirements are met. Accordingly, when a third party brings a direct claim against an insure before Korean court, which law would govern the issue of a third party’s claim against an insurer would decide whether such an action is allowed and/or its permitted extent. In Korea, three opinions are being presented with regard to the applicable law of a third party’s direct claim against an insurer. First approach is that a third party’s direction action should be governed by the law governing the insurance contract. Second one is that such a direct claim should be governed by the law governing the tortious act of the insured. Another alternative is that a third party may bring his or her claim directly against an insurer if the law applicable to the insured’s obligation against the third party or the laws applicable to the insurance contract so provides. Korean Supreme Court has recently ruled that since a third party’s right against an insurer is derived from the specific provisions of the relevant act, not from the insured’s tortious act, and the content and extent of such a right is dependant on the insurance contract, the most closely connected law of the country is the law applicable to the insurance contract.As the specific content of a third party’s claim against an insurer should be determined by the insurance contract and an insurer compensates a third party only in the event such a claim is within the coverage of the insurance policy, the governing law of the insurance contract is likely to be the most closely connected with such legal relations and accordingly is likely to govern the third party’s action against an insurer.