기망행위를 원인으로 한 보험금청구의 법적 분석 및 대책

Abstract

The conflicts and problems from insurance contract may come from what deserving people do not get anything they deserve or what no deserving people do get something that they do not deserve. While the number of countermeasures against insurance fraud have been attempted, it seems that the law of contract, the insurance law, and even criminal law may have not made strong incentive to prevent a significant number of policyholders from committing insurance fraud. Furthermore, it is unlikely that a recent supreme court decision with regard to a new type of insurance fraud has produced strong incentive to oppress insurance fraud. Due to the lack of laws dealing with insurance fraud, Korean supreme court has to depend on a general principle of civil law, the principle of good faith, to make a final decision on a fraudulent claim where a policyholder asked insurance company for the benefit which is much larger than what he is supposed to receive under the insurance policy by fabricating documents and bills. Court has two options. First, court may deny the contractual right based on the principle of good faith. Second, court may allow partially the contractual right based on real claim and deny the rest of claim based on Restitution or Torts. The court has chosen to apply restitution or torts law instead. Theoretically, the choice by the court may be based on an orthodox view but does not produce any incentive to prevent potential policyholders from bring false claims. This article has classified insurance fraud into three and focussed and legally analysed the third type. First, the insurance applicant may deceive his or her insurance company by providing incomplete information when he or she makes a contract. Second, after making a contract with good faith, the policyholder or insured may deceive the insurer by intentionally causing the accident covered by insurance. Third, where no false information or no manipulating an accident, the policyholder may receive a larger payout than actual losses by submitting exaggerated bills and documents. Recently, the second third types of insurance fraud have been increased. Because of the lack of law to regulate these types of insurance fraud, the incentive to commit these types insurance fraud is good enough. This article have tried to provides countermeasures to prevent the third type of insurance fraud based on the principle of good faith in Civil Code from bring false claims.