보증보험에 있어서 피보험자(채권자)의 고지의무에 관한 고찰

Abstract

The surety is entitled to suretyship defences as defined in section 12 in the Restatement of Security (third) published by the American Law Institute(ALI)which distinguishes between where before the guarantor has undertaken and, after formation of contract of suretyship. Subdivision (1) of section 12 prescribes where before the guarantor has undertaken his obligation the creditor knows facts unknown to the guarantors that materially increase the risk beyond that which the creditor has reason to believe the guarantor intends to assume, and the creditor also has reason to believe that these facts are unknown to the guarantor and has a reasonable opportunity to communicate them to the guarantor, failure of the creditor to notify the guarantor of such facts is a defense to the guarantor. In Korea, the special law for protection of the guarantor has been legislated on March 21, 2008, and came into effect on September 22, 2008. It is prescribing the special cases of the civil law, aiming to prevent both financial and mental damages from guarantee contract and establish reasonable custom of the suretyship system. Because there is information gap between the obligee and the surety, there is recognizing the duties of the obligee to the surety which give a proper information of the real state of finance and economic situation of principal. At last, consolidating the protection of the guarantor in revising the civil law and including the special act of the protection of the guarantor into the civil law should be theoretically founded and established in a way to minimize the damages of the guarantors from the enlargement of their responsibilities of surety contracts,considering our society's actual state. From this point of the trend, the assured is under the duty of to disclose all material relating to the insurance which he proposes to effect. The decisive influence test has been adopted by Korean Supreme Court and scholars in order to certain what facts are to be regarded as material. However, these duties are modified by the terms of the contract. The assured must disclose all material facts which are within his actual or presumed knowledge. In practice, a list of printed questions in the proposal from is usually submitted to him to answer in writing.